EXHIBIT 10.22
[Letterhead of SBA COMMUNICATIONS CORPORATION]
November 24, 1998
BellSouth Personal Communications, Inc.
0000 Xxxxxxxxx Xxxx, X.X., Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
First Amendment of Build to Suit Agreement and Master Lease
Gentlemen:
Reference is made to that certain (i) Agreement to Build to Suit and to Lease
(the "Build to Suit Agreement"), dated October 30, 1998, by and among BellSouth
Personal Communications, Inc. ("BellSouth") for itself and as general partner of
BellSouth Carolinas PCS, L.P., SBA Towers, Inc. and SBA, Inc., and (ii) Master
Lease (the "Master Lease"), dated October 30,1998, by and among BellSouth, SBA
Towers, Inc. and SBA Sites, Inc. Capitalized terms not otherwise defined in this
letter will have the meaning provided in the Build to Suit Agreement and the
Master Lease.
This letter will amend the Master Lease effective as of the date of this letter
by replacing the definition of Rent used in the Master Lease with the rental set
forth on Exhibit A attached to this letter with respect to the Sites listed on
Exhibit B attached to this letter only, which Sites have been awarded to Vendor
pursuant to the Build to Suit Agreement, and which Sites will be identified and
constructed in accordance with the terms and conditions of the Build to Suit
Agreement.
Except as modified or amended above, the Build to Suit Agreement and the Master
Lease are hereby ratified and confirmed in all respects, are in full force and
effect, and have not otherwise been amended, modified, extended or renewed,
whether verbally or in writing.
Please confirm XxxxXxxxx's agreement with the terms of this letter by signing
below. Faxed signatures will be binding.
Thank you for your attention to this matter.
Very truly yours,
SBA Towers, Inc.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------
Names: Xxxxxxx X. Xxxxxx
Title: Sr. Vice President
SBA Sites. Inc.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------
Names: Xxxxxxx X. Xxxxxx
Title: Sr. Vice President
Acknowledged and Agreed
this 30th day of November, 1998
BELLSOUTH PERSONAL COMMUNICATIONS,
INC.
By: /s/ Xxxxxxx X. Xxxxx
---------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President - Finance
THE CAROLINAS PARTNERSHIP:
BELLSOUTH CAROLINAS PCS, L.P., by
BELLSOUTH PERSONAL COMMUNICATIONS,
INC., its general partner
By: /s/ Xxxxxxx X. Xxxxx
---------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President - Finance
EXHIBIT A
INITIAL MONTHLY AMOUNT
Year Amount Per Month
---- ----------------
1 $1,145.00
Thereafter, the Amount Per Month shall be increased 4% annually for the initial
Term and any Extension Terms.
EXHIBIT B
ADDITIONAL SITES
Region 1
Sorted by General Manager by Commercial Service Date
Cluster Cluster #
Priority Location Sites
-------- -------- -----
Ral31 Hwy [ILLEGIBLE] 4
Ral37 Xxxx XxXxxxx 3
Ral35 195 Roanoke Rapids to VA 2
Ral33 Hwy 15/501 Pittsboro to Xxxxxxx 2
Ral30 Hwy 64 Tarboro to Outer Banks 15
Ral26 Hwy 24 Fayetteville to Clinton/140 7
Ral25 I85 Xxxxxxxxx to VA 2
Ral15 Hwy 64 Rocky Mount to Tarboro 4
Ral10 I95 Rocky Mount to Roanoke Rapids 4
43
GB9 Connecting Asheboro to Sier City 4
GB8 NE Greensboro/Lake Xxxxxxxx 1
GB7 SW Greensboro 2
GB26 Danbury 1
GB25 Tobaccoville 1
GB24 Route 62 Connector 2
GB21 Route 158 Connector 2
GB19 Interstate 77 Connector 4
GB18 Route 87 2
GB17 Summerfield and Route 150 1
GB4 Boone/Blowing Rock 12
GB23 Route 16 Connector 1
GB13 Pleasant Garden 1
GB20 Route 601 Connector from Yadkinville to 2
Mocksville
GB22 Route 49 Connector to Charlotte 5
41
Xxx0 Xxx 00/27 Hwy 601 7
Cha8 Xxxxxxx Xxxxxx 1
Cha7 Weddington Waxhaw 0
Xxx0 Xxxxxxxxxx/Xxx. 16/Xxxxxxx 4
Cha31 Concord hwy. 73 2
Cha30 New 321 By-pass 2
Xxx0 X00 Xxxxxxx 00 0
Xxx00 Xxxxxxxxx/XxxxxxxxxxxXxxxxxxxxxx 7
Cha14 Monroe to Waxhaw (Hwy.75) 2
Cha10 South Lenoir (Bypass area) 1
Cha35 Hwy 401 (Bennettsville to BTA 147) 2
Cha34 Hwy. 220/73 and Hwy.1 Rockingham to 3
Candor
Cha32 Mount Pleasant 2
Cha29 Monroe to Concord (Hwy.200) 4
Cha28 Rutherfordton to BTA 20 4
Cha26 Wadesboro to Albemarle (Hwy. 52) 4
Cha25 York to Xxxxxxx 2
Cha24 Mooresville Northeast 1
Cha23 Lenoir to Blowing Rock 5
Cha19 Taylorsville to Lenoir/Hickory 10
Cha18 Monroe to Lancaster (Hwy. 200 S) 3
Cha16 Lancaster, SC to Pageland, SC (Hwy.9) 3
Cha15 Hwy 49/274 (York, SC to Xxxxxx Co.) 3
75
Total 1999 Region 1 Sites 159
and any additional sites that are approved by SBA Towers, Inc. pursuant to
Section 3.09 of the Agreement to Build to Suit and to Lease (the "BTS
Agreement"), dated October 30, 1998, among BellSouth, for itself, and as
general partner of BellSouth Carolinas PCS, L.P., SBA Towers, Inc. and SBA,
Inc., and are not otherwise listed on Annex A to the BTS Agreement.
--------------------------------------------------------------------------------
EXECUTION COPY
AGREEMENT TO BUILD TO SUIT
AND
TO LEASE
By and Among
BELLSOUTH PERSONAL COMMUNICATIONS, INC.,
for itself, and as general partner of
BELLSOUTH CAROLINAS PCS, L.P.,
SBA TOWERS, INC.
and
SBA, INC.
OCTOBER 30, 1998
--------------------------------------------------------------------------------
(C)BellSouth Personal Communications, Inc. 1998
RESTRICTED: Contains Private and/or Proprietary Information.
May only be used for Authorized BellSouth Business Purposes and only by
Authorized Individuals.
TABLE OF CONTENTS
ARTICLE 1 ................................................................... 2
1.01 Definitions ......................................................... 2
1.O2 Use of Words and Phrases ............................................ 8
ARTICLE 2 ................................................................... 9
ARTICLE 3 ................................................................... 10
3.01 Engagement of Vendor ................................................ 10
3.02 Term ................................................................ 10
3.03 Time for Commencement and Completion ................................ 10
3.04 Relationship ........................................................ 11
3.05 Project Personnel ................................................... 11
3.06 Familiarity with Project and Sites .................................. 12
3.07 Quality Standard .................................................... 12
3.08 Books and Records of Vendor; Right of Inspection by XxxxXxxxx ....... 12
3.09 Expansion in Scope of Project ....................................... 12
3.10 Available Sites in Event of Condemnation ............................ 13
ARTICLE 4 ................................................................... 14
4.01 Vendor's Undertakings ............................................... 14
4.02 Governmental Requirements and Permits................................ 14
ARTICLES 5 .................................................................. 16
5.01 Development Plan .................................................... 16
5.02 Due Diligence ....................................................... 17
5.03 Proposal of Cell Sites .............................................. 17
5.04 Utilities ........................................................... 17
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Authorized Individuals.
ARTICLE 6 ................................................................... 18
6.01 General ............................................................. 18
6.02 Performance of the Work ............................................. 19
6.04 Site and Project Schedules .......................................... 19
6.05 Quality Review ...................................................... 20
6.06 Compliance with Requirements, Permits, Bonds and
Insurance during Construction ....................................... 20
6.07 Work Permits ........................................................ 20
6.08 Construction ........................................................ 20
6.09. Project Tools ...................................................... 21
6.10 Warranty ............................................................ 21
6.11 Access Inspection ................................................... 21
6.12 Completion .......................................................... 23
ARTICLE 7 ................................................................... 23
7.01 Identification of Colocation Sites .................................. 23
7.02 Other Colocation Services ........................................... 24
ARTICLE 8 ................................................................... 24
8.01 Site Acquisition .................................................... 24
8.02 Vendor's Access to Site Prior to Scheduled Commencement Date......... 24
8.03 Hazardous Waste and Contamination Investigation ..................... 25
8.04 Geotechnical Subsurface and Soil Investigation ...................... 25
8.05 Additional Environmental Requirements ............................... 25
ARTICLE 9 ................................................................... 26
9.02 Assignment to the Bankruptcy Remote Entity .......................... 26
9.01 Right to Lease ...................................................... 26
9.03 Recordation of Ground Leases and Site Leases ........................ 26
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RESTRICTED: Contains Private and/or Proprietary Information.
May only be used for Authorized BellSouth Business Purposes and only by
Authorized Individuals.
9.04 Effect of Master Lease and Site Lease ............................... 26
ARTICLE 10 .................................................................. 27
10.01 Vendor's Insurance Requirements .................................... 27
10.02 Evidence of Insurance .............................................. 28
10.03 Waiver of Subrogation .............................................. 28
ARTICLE 11 .................................................................. 28
11.01 Liquidated Damages ................................................. 28
11.02 Indemnity of XxxxXxxxx ............................................. 29
11.03 Relationship to Insurance .......................................... 29
ARTICLE 12 .................................................................. 30
12.01 BellSouth's Representations and Warranties ......................... 30
12.02 Vendor's Representations and Warranties ............................ 30
ARTICLE 13 .................................................................. 31
13.01 Default ............................................................ 31
ARTICLE 14 .................................................................. 34
14.01 Force Majeure ...................................................... 34
14.02 Effect of Force Majeure ............................................ 35
ARTICLE 15 .................................................................. 35
15.01 Obligation to Reconstruct; Use of Insurance Proceeds ............... 35
15.02 Condemnation of the Tower or Site; Application of Compensation ..... 35
ARTICLE 16 .................................................................. 35
16.02 Notices ............................................................ 35
16.03 Assignment; Binding Effect ......................................... 37
16.04 Authorized Representatives ......................................... 37
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RESTRICTED: Contains Private and/or Proprietary Information.
May only be used for Authorized BellSouth Business Purposes and only by
Authorized Individuals.
16.05 Headings .............................................................. 37
16.06 Annexes and Exhibits .................................................. 37
16.08 Publicity ............................................................. 37
16.09 Severability .......................................................... 37
16.10 Waiver ................................................................ 38
16.11 Rights Cumulative ..................................................... 38
16.12 Time of Essence; Prompt Responses ..................................... 38
16.13 Applicable Law ........................................................ 38
16.14 Dispute Resolution Procedure .......................................... 38
16.15 Entire Agreement ...................................................... 39
16.16 Modifications ......................................................... 39
16.17 Counterparts .......................................................... 40
16.18 No Brokers ............................................................ 40
LIST OF ANNEXES AND EXHIBITS
Annex A Original Sites; Additional Sites
Annex B Scope of Work
Annex C Specifications
Annex D Vendor Responsibility Matrix
Annex E Disaster Recovery Plan
Annex F Project Data Requirements
Annex G Project Schedule
Annex H Authorized Representatives
Annex I Colocation Services
Annex J Form of Candidate Sheet/NTP
Annex K Bankruptcy Remote Entity Requirements
Annex L Form of Final Punchlist/Acceptance Confirmation
Annex M Form of Certificate of Completion
Annex N Form of Site Data Package
Annex O Project Dispute Resolution Procedures
Exhibit A Form of Master Lease
Exhibit B Form of Site Lease
Exhibit C Form of Ground Lease
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Authorized Individuals.
AGREEMENT TO BUILD TO SUIT
AND TO LEASE
THIS AGREEMENT, made and entered into as of this 30 day of October, 1998
by and among BELLSOUTH PERSONAL COMMUNICATIONS, INC. ("BellSouth") for itself,
and as general partner of BellSouth Carolinas PCS, L.P., a Delaware limited
partnership (the "Carolinas Partnership"), SBA TOWERS, INC., a Florida
corporation ("SBA Towers") and SBA, INC., a Florida Corporation ("SBA", and
together with SBA Towers, "Vendor"),
W I T N E S S E T H:
WHEREAS, BellSouth desires Vendor to identify potential cell site
locations within specified search areas and to cause each such cell site
selected by BellSouth to be acquired or leased by Vendor and to be developed,
among other things, causing a tower and other improvements to be designed,
constructed and installed thereon, for lease to, and use and occupancy by,
BellSouth or the Carolinas Partnership; and
WHEREAS, BellSouth and the Carolinas Partnership also desire to engage
Vendor as an independent contractor, upon the terms and conditions set forth
herein, to provide, or cause the provision of, among other things, ongoing
services related to each such selected cell site and Vendor desires to perform
such services for BellSouth; and
WHEREAS, BellSouth and the Carolinas Partnership and Vendor desire to
enter into this Agreement to set forth their respective duties and
responsibilities pertaining to such construction; and
WHEREAS, the parties acknowledge and agree that in order to implement such
construction and installation, SBA Towers shall acquire either fee simple title
to, or a leasehold interest in each cell site by executing a ground lease for
such site and SBA shall perform any Services (as defined in Section 1.01)
related to each site, including, without limitation, development of such site,
construction and installation of a tower and improvements on such site and any
other Services to be provided by Vendor under this Agreement; and
WHEREAS, contemporaneously with the execution of this Agreement, the
parties and the Bankruptcy Remote Entity (as defined in Section 1.01) have
executed a Master Lease (as defined in Section 9.01), pursuant to which the
Bankruptcy Remote Entity will lease each such selected cell site and the tower
and other improvements thereon to BellSouth or the Carolinas Partnership, on
terms and conditions set forth in the Master Lease and the Site Lease (as
defined in Section 1.01) for such cell site;
(C)BellSouth Personal Communications, Inc. 1998
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Authorized Individuals.
NOW, THEREFORE, for and in consideration of the premises, and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
ARTICLES 1
DEFINITIONS
1.01 Definitions. (a) The following capitalized terms shall have the
following respective meanings for purposes of this Agreement:
"Additional Sites" has the meaning ascribed to such term in Section 3.09.
"Acquisition" means the acquisition by Vendor of fee simple title to or a
leasehold interest in each Site, all investigations, examinations, tests and
inspections, and other due diligence activities incidental thereto, and all
legal activities incident thereto.
"Acquisition Date" means, with respect to a Site, the date on which SBA
Towers acquires either fee simple title to or a leasehold interest in such Site.
"Affiliate" means with respect to either party, any individual or firm,
corporation, partnership, association, trust or other entity which, whether
directly or indirectly, Controls, is Controlled by, or is under common Control
with the subject party.
"Agreement" means this Agreement, including any Annexes, Exhibits and any
amendments hereto or thereto.
"Anchor Tenant" has the meaning ascribed to such term in the Master Lease.
"Bankruptcy Remote Entity" means a bankruptcy-remote, 100%-owned
subsidiary of SBA Towers, formed and structured by SBA Towers in compliance with
the requirements set forth in Annex K and engaged exclusively in the business of
owning (through fee simple title or a leasehold interest), operating and
managing Sites and Improvements thereon and leasing such Sites and Improvements
to BellSouth or the Carolinas Partnership and Other Tenants pursuant to the
terms of the Master Lease and the applicable Site Leases.
"BellSouth Indemnitee" means BellSouth, the Carolinas Partnership, their
respective Affiliates, and the respective directors, officers, employees,
agents, contractors, subcontractors, advisors and consultants of BellSouth, the
Carolinas Partnership and their respective Affiliates.
"BellSouth's Improvements" has the meaning ascribed to the term "Anchor
Tenant's Improvements" in the Master Lease.
(C)BellSouth Personal Communications, Inc. 1998
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RESTRICTED: Contains Private and/or Proprietary Information.
May only be used for Authorized BellSouth Business Purposes and only by
Authorized Individuals.
"Business Day" means any day other than a Saturday, Sunday or other day on
which commercial banks are authorized to close in Atlanta, Georgia.
"Change of Control" has the meaning ascribed to such term in the Master
Lease.
"Claim" has the meaning ascribed to such term in Section 11.02.
"Cluster" means a cluster, string or other group of Sites and identified
as such in Annex A.
"Cluster Completion Date" means, as to any Cluster, the first date as of
which all Sites in such Cluster are Completed, other than Sites in such Cluster
as to which an Excusable Delay has occurred.
"Colocation Services" shall mean the services to be performed by Vendor
for BellSouth as described in Annex I.
"Completion," "Complete" or "Completed" means or refers to (i) Vendor's
receipt of all FAA and zoning approvals and other Permits in accordance with all
Governmental Requirements, (ii) Vendor's completion of all items of construction
in accordance with the Specifications and the requirements of all Governmental
Authorities applicable to Vendor or the Improvements so that BellSouth can use
the Tower and Improvements for the Intended Use without interference in
BellSouth's conduct of its ordinary business activities, except for customary
punch list items relating to minor nonconformities with the Specifications, the
failure of any one or more of which to remedy would not have an adverse impact
on the Intended Use, and any other defects or other items that BellSouth has
waived in writing; (iii) Vendor's securing a certificate of occupancy or any
other final municipal approval from the applicable Governmental Authority, if
applicable; (iv) the issuance by BellSouth of the Completion Certificate in
accordance with Section 6.12; (v) BellSouth, its employees, agents and invitees,
have ready access to the areas around the Tower and Improvements; (vi) all the
fixtures and equipment to be installed by Vendor are installed and in good
operating order; (vii) the Tower and the Improvements are ready for the
installation of BellSouth's Improvements; and (viii) the Site is broom clean.
"Completion Certificate" means the certificate of completion issued by
BellSouth with respect to each Site to the effect that the Work is Completed,
which certificate shall be issued in accordance with Section 6.12 and Annex M
attached hereto.
"Completion Date" means the date on which the Tower and Improvements are
Completed with respect to each Site, pursuant to the Project Schedule and the
applicable Site Schedule.
(C)BellSouth Personal Communications, Inc. 1998
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RESTRICTED: Contains Private and/or Proprietary Information.
May only be used for Authorized BellSouth Business Purposes and only by
Authorized Individuals.
"Control" means the ownership, directly or indirectly, of sufficient
voting shares of an entity, or otherwise the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of
an entity, or the power to veto major policy decisions of any such entity,
whether through the ownership of voting securities, by contract or otherwise.
"Development of Site" means and includes with respect to each Site (i)
preparation of the Site Schedule for the Site, (ii) the Acquisition of the Site,
(iii) the performance of the Work on the Site, and (iv) the Completion of the
Site.
"Effective Date" means the date first above written, being the date on
which the parties have executed and delivered this Agreement.
"Environmental Assessment" means the "Phase I" environmental assessment of
each Site, performed in accordance with the American Society for Testing and
Materials (ASTM) Standard E1527-97, Standard Practice for Environmental Site
Assessment: Phase I Environmental Site Process, and such further investigations
as are reasonably indicated by the results thereof, to be obtained by Vendor
pursuant to Section 8.03 hereof.
"Environment, Health and Safety Requirements" means all of the terms and
conditions of all permits, licenses and other authorizations which are required
under, and all other limitations, restrictions, conditions, standards,
prohibitions, requirements, obligations, schedules and timetables which are
contained in all federal, state and local laws (including rules, regulations,
codes, judgments, orders, decrees, stipulations, injunctions and demand letters
issued, entered, promulgated or approved thereunder) relating to public health
and safety, worker health and safety or pollution or protection of the
environment, including laws relating to emissions, discharges, releases or
threatened releases of Hazardous Materials into ambient air, surface water,
ground water or lands or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Hazardous Materials.
"Excusable Delay" means as to any Site, (i) a Force Majeure event as to
such Site, (ii) an extension or adjustment of the Site Schedule, the Project
Schedule, the Scheduled Commencement Date or the Project Completion Date, each
only as they apply to the affected Site, as provided for and expressly permitted
under the terms of this Agreement, including without limitation, Section 4.02
and (iii) the period of time Vendor is waiting for BellSouth to give an approval
under this Agreement or take an action under this Agreement, in respect of any
Site, in excess of any time period specifically designated by this Agreement for
such approval or action, provided that Vendor has performed any and all
obligations hereunder required to have been performed in respect of such Site as
of such time.
"FAA" means the Federal Aviation Administration.
"FCC" means the Federal Communications Commission.
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RESTRICTED: Contains Private and/or Proprietary Information.
May only be used for Authorized BellSouth Business Purposes and only by
Authorized Individuals.
"Force Majeure" means those events constituting excuse from timely
performance by Vendor of any duty or obligation hereunder to which it is
subject, as such events are described in Article 14 hereof.
"Governmental Authority" means any federal, state, county or municipal
governmental authority, including all executive, legislative, judicial and
administrative bodies thereof.
"Governmental Requirements" means (i) all federal, state and local laws,
ordinances, and regulations and all orders and decrees of bodies or all
Governmental Authorities, which in any manner affect the Services provided under
this Agreement, Vendor's performance of its obligations hereunder or the
ownership, use or operation of the Sites, and (ii) all Environment, Health and
Safety Requirements.
"Ground Lease" means a ground lease of a Site entered into by SBA Towers
and assigned to the Bankruptcy Remote Entity, substantially in the form of
Exhibit C.
"Hazardous Materials" means any hazardous or toxic substance, material,
pollutant, contaminant or waste, including, without limitation, any material or
substance which is (i) petroleum or a petroleum derivative, a battery or a
liquid solvent or a similar chemical, (ii) asbestos or an asbestos-containing
material, (iii) radioactive material or waste, (iv) a polychlorinated biphenyl
(PCB), (v) designated as a "hazardous substance" pursuant to Section 311 of the
Federal Water Pollution Control Act (33 U.S.C. ss.. 1321), (vi) defined as a
"hazardous waste" pursuant to Section 1004 of the Federal Resource Conservation
and Recovery Act (42 U.S.C. ss. 6903), or determined to be a "hazardous waste"
under applicable federal or state law, (vii) defined as a "hazardous substance"
pursuant to Section 101 of the Comprehensive Environmental Response,
Compensation and Liability Act (42 U.S.C. ss. 9601), (viii) regulated under the
Toxic Substances Control Act (15 U.S.C ss. 2601, et seq.), or (ix) any other
substance or material similarly classified by any other federal, state or local
statute or ordinance or by any rule or regulation promulgated or adopted
pursuant thereto, whether now existing or hereinafter enacted.
"Improvements" means with respect to each Site, (i) a concrete equipment
pad or raised platform capable of accommodating exterior cabinets, electrical
service and access for the placement and servicing of BellSouth's Improvements,
(ii) a grounding ring, (iii) fencing, (iv) signage, (v) connections for service
in accordance with Section 5.04 and (vi) hardware constituting a tower platform
to hold BellSouth's Improvements, as more particularly described in Annex C.
Improvements shall not include the BellSouth Improvements or equipment for Other
Tenants.
"Inspections" has the meaning ascribed to such term in Section 8.02.
"Intended Use" has the meaning ascribed to such term in the Master Lease.
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RESTRICTED: Contains Private and/or Proprietary Information.
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Authorized Individuals.
"Liens" has the meaning ascribed to such term in the Master Lease.
"Liquidated Damages" has the meaning ascribed to such term in Section
11.01.
"Master Lease" means the Master Lease of even date herewith among
BellSouth, Vendor and the Bankruptcy Remote Entity.
"Material Adverse Effect" means a material adverse effect on (i) Vendor's
ability to perform its obligations hereunder, including without limitation
construction of the Improvements in accordance with the terms hereof, (ii) the
Improvements or the compliance thereof with the Specifications or (iii) the
Intended Use.
"Notice to Proceed" means a Notice to Proceed, substantially in the form
of the Notice to Proceed included in Annex J, given by BellSouth to Vendor
pursuant to Section 5.03.
"Original Sites" means those potential cell site locations, as set forth
in Part I of Annex A, which BellSouth approves to be Sites, pursuant to Section
5.03 hereunder.
"Other Tenants" means, as to any Site, any Person other than an Anchor
Tenant, which leases ground space and/or Tower space on such Site from Vendor.
"Permits" means any and all certificates, licenses, permits,
authorizations, consents, special use permits and other approvals by the
applicable Governmental Authorities having jurisdiction in such matters required
to be obtained, issued, granted or received for the performance of the Work and
Completion or the Intended Use (other than as to installation of BellSouth's
Improvements), including without limitation any and all Permits to be issued by
all Governmental Authorities that are required for the construction of the Tower
and Improvements related thereto.
"Permitted Liens" has the meaning ascribed to such term in the Master
Lease.
"Person" means any individual, firm, corporation, partnership, limited
liability company, trust, unincorporated business association or Governmental
Authority.
"Potential Colocation Sites" has the meaning ascribed to such term in
Section 7.01.
"Premises" has the meaning ascribed to such term in Section 9.02.
"Project" means Vendor's Acquisition of all the Sites and performance of
the Work to be performed on all Sites and its other obligations set forth
herein, as more particularly described in this Agreement, including the Annexes,
subject to expansion pursuant to Section 3.09.
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RESTRICTED: Contains Private and/or Proprietary Information.
May only be used for Authorized BellSouth Business Purposes and only by
Authorized Individuals.
"Project Completion Date" means December 31, 1998, subject to extension as
to Additional Sites pursuant to Section 3.09 and for Excusable Delays as to
specific Sites pursuant to Section 6.04(b).
"Project Schedule" means a timetable for the Project consisting of all
material components and events for the Completion of the Project, and the time
periods necessary for the various aspects thereof, including revisions and
adjustments thereto provided for and expressly permitted by the terms of this
Agreement, including for Excusable Delays as to specific Sites pursuant to
Section 6.04(b), as set forth in Annex G.
"Rent" has the meaning ascribed to such term in the Master Lease.
"Scheduled Commencement Date" means, with respect to each Site, the date
on which the Work on such Site is scheduled to commence, as set forth in the
applicable Notice to Proceed, subject to revisions and adjustments pursuant to
Section 6.04(b) for Excusable Delays or pursuant to Section 5.03.
"Services" means all services required to be performed or procured by
Vendor pursuant to the terms and conditions of this Agreement, including,
without limitation, (i) provision of cell site searching services in search
areas designated by BellSouth; (ii) identification of potential new locations
for Sites within each designated search area and presentation of such
preliminary identified potential Sites to BellSouth for final selection; (iii)
acquisition by Vendor of rights to the Sites by either entering into a Ground
Lease or acquisition of fee simple title to each Site in accordance with the
Master Lease, (iv) construction and installation of a Tower and Improvements on
each of the Sites, and (v) Colocation Services; all as more particularly
described in this Agreement, including the Annexes.
"Site" means any Original Site that becomes part of the Project pursuant
to Section 5.03 or any Additional Site that becomes part of the Project pursuant
to Sections 3.09 and 5.03.
"Site Lease" means as to any Site, the lease or sublease, in the form of
Exhibit B, pursuant to which the Bankruptcy Remote Entity leases or subleases
space on the Site to BellSouth or the Carolinas Partnership, in accordance with
the Master Lease.
"Site Schedule" means a timetable prepared by Vendor and approved in
writing by BellSouth with respect to each Site that graphically describes the
time periods and completion dates for each of the activities necessary to
complete the Work with respect to such Site and the other Sites in the
applicable Cluster, consistent with Annex G, subject to revisions or adjustments
for an Excusable Delay respecting such Site pursuant to Section 6.04(b).
"Specifications" means the drawings and technical specifications for the
Towers and Improvements, as set forth in Annex C.
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RESTRICTED: Contains Private and/or Proprietary Information.
May only be used for Authorized BellSouth Business Purposes and only by
Authorized Individuals.
"Tax Code" means the Internal Revenue Code of 1986, as amended, and any
regulations and rulings thereunder.
"Tower" means a radio tower structure constructed and installed by Vendor
pursuant to this Agreement.
"Vendor Indemnitees" means SBA Towers and SBA, their respective
Affiliates, and the respective directors, officers, employees, agents,
contractors, subcontractors, advisors and consultants of SBA Towers and SBA and
their respective Affiliates.
"Work" means SBA's construction and installation of the Tower and
Improvements in accordance with the Specifications, and includes labor necessary
to Complete such construction and installation, and materials and equipment for
such construction and installation, as required by this Agreement, to be
furnished by Vendor or any subcontractor, for the construction and installation
of the Tower.
(b) Any other capitalized terms used in this Agreement shall have
the respective meanings given to them elsewhere in this Agreement.
1.02 Use of Words and Phrases. (a) Words of the masculine gender shall be
deemed and construed to include correlative words of the feminine and neuter
genders. Unless the context shall otherwise indicate, the singular shall include
the plural as well as the singular number. "Herein," "hereby," "hereunder,"
"hereof," "herein before," "hereinafter," and other equivalent words refer to
this Agreement and not solely to the particular portion thereof in which any
such word is used.
(b) Whenever in this Agreement either of the words "day" or "days"
is used it means a calendar day unless specifically stated to be a Business Day.
(c) BellSouth and Vendor agree that any defined term used herein
constituting a document, instrument, drawing, survey, map, plan, technical
description or other writing, and any other reference herein to a writing, shall
include originals of such writing and any and all amendments, supplements,
modifications, renewals, extensions, restatements or replacements of or to the
same from time to time.
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ARTICLE 2
AGREEMENT DOCUMENTS
This Agreement shall consist of the following documents, as amended from
time to time as provided herein:
(a) this Agreement document;
(b) the following Annexes, which are incorporated herein by
this reference:
Annex A Original Sites; Additional Sites
Annex B Scope of Work
Annex C Specifications
Annex D Vendor Responsibility Matrix
Annex E Disaster Recovery Plan
Annex F Project Data Requirements
Annex G Project Schedule
Annex H Authorized Representatives
Annex I Colocation Services
Annex J Form of Candidate Sheet/NTP
Annex K Bankruptcy Remote Entity Requirements
Annex L Form of Final Punchlist/Acceptance
Confirmation
Annex M Form of Certificate of Completion
Annex N Form of Site Data Package
Annex 0 Project Dispute Resolution Procedures
(c) the following Exhibits, which are incorporated herein by
this reference:
Exhibit A Form of Master Lease
Exhibit B Form of Site Lease
Exhibit C Form of Ground Lease; and
(d) such additional documents as are incorporated by
reference.
If any of the foregoing are inconsistent, this Agreement shall prevail over
Annexes, Exhibits and additional incorporated documents.
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ARTICLE 3
SCOPE OF WORK; NATURE OF THE ENGAGEMENT
3.01 Engagement of Vendor. (a) Subject to the provisions of Article 9,
BellSouth hereby engages Vendor to acquire the Sites, construct and install the
Towers and Improvements thereon, and perform the Services in connection with
each Site, all as required by this Agreement. Vendor hereby accepts such
engagement in accordance with the terms and conditions of this Agreement. Vendor
shall construct Sites in Clusters according to the applicable Site Schedule and
applicable Project Schedule. Vendor shall perform and be responsible for all
responsibilities assigned to Vendor in the Vendor Responsibility Matrix attached
as Annex D.
(b) Except as set forth in the following sentence and in Article 7,
Vendor's entire compensation for the Project or any part thereof will be derived
solely from the payments of rent by BellSouth for each Site, pursuant to the
terms of the Master Lease and the applicable Site Lease. In the event that
BellSouth withdraws a Site from this Agreement for any reason except in
connection with Section 4.02(e) or 13.05(a), BellSouth shall pay Vendor for all
of Vendor's reasonable out-of-pocket costs directly incurred, to the date of
withdrawal, in connection with such Site ("Withdrawal Costs"), including,
without limitation, reasonable third party vendor costs plus a fee to cover
overhead and employee time equal to ten percent (10%) of the amount of any
Withdrawal Costs; provided that Vendor has provided BellSouth with
substantiation of such Withdrawal Costs in reasonable detail.
3.02 Term. (a) The term of this Agreement shall commence on the Effective
Date, and shall continue until the Project Completion Date, unless sooner
terminated as provided herein; provided that if the Project has not been
Completed as of that date, BellSouth, in its sole discretion, may extend the
term hereof as to all or any of the Sites that have not been Completed, until
the Completion thereof.
(b) Notwithstanding anything to the contrary contained herein, the
parties acknowledge and agree that, upon Completion of any Site and the
execution of a Site Lease therefor, those provisions of this Agreement which
survive the expiration or termination hereof, Article 9, Annex D, the Master
Lease, the applicable Site Lease and related documents shall govern the
respective rights and obligations of the parties with respect to each such Site.
3.03 Time for Commencement and Completion. Vendor and BellSouth
acknowledge that the time for Scheduled Commencement Date and Completion of the
Project will be determined by the Project Schedule. Vendor's unexcused failure
to Complete any Site in accordance therewith or to Complete the Project by the
Project Completion Date, as the case may be, shall subject Vendor to the
Liquidated Damages pursuant to Section 11.01.
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3.04 Relationship. Vendor agrees to furnish its best skill and judgment in
performing its obligations hereunder, and the parties agree to cooperate with
each other in Completing the Project in accordance with this Agreement.
XxxxXxxxx and Vendor, in the performance of this Agreement, will be acting in
their respective individual capacities and not as employees, partners, joint
venturers, agents or associates of one another. In the performance of this
Agreement, Vendor is, and shall at all times during the term of this Agreement
be, an independent contractor. Nothing contained in this Agreement creates the
relationship of a joint venture, partnership, association or agency between the
parties. No party shall have any authority to bind or otherwise obligate the
other. Persons retained by either party as employees or agents shall not, solely
by reason thereof, be deemed to be employees or agents of the other party.
3.05 Project Personnel. (a) Vendor shall, at its own cost and expense,
employ only personnel Vendor believes to be competent and able for the
performance of Vendor's obligations under this Agreement, and Vendor shall
require all contractors and subcontractors engaged in the performance of Work or
otherwise engaged in the Project to be properly licensed and legally qualified
to construct the Towers and Improvements and complete the Work on each Site.
Vendor shall, at all times during the term of this Agreement, keep a sufficient
number of qualified personnel to the extent required to Complete the Project by
the Project Completion Date pursuant to the Site Schedules and Project Schedule.
Subject to Section 3.05(d), Vendor shall have exclusive control of and direction
over the Persons engaged in the performance of Vendor's obligations under this
Agreement.
(b) If reasonably requested by BellSouth, Vendor shall make
available additional suitable experts in the areas of engineering, design,
construction, installation, management, performance enhancement and other
operational specialties applicable to the Project.
(c) Vendor and BellSouth will each be solely responsible for the
actions and conduct of all its employees, agents, consultants, advisors,
contractors and subcontractors. Vendor and BellSouth will each ensure that
anything related to its employees, agents, consultants, advisors, contractors or
subcontractors shall be in strict compliance with Governmental Requirements,
except for noncompliances which would not have a Material Adverse Effect.
(d) BellSouth reserves the right to require from Vendor the
immediate removal from or to exclude any Person or entity employed by or working
for Vendor from any Site, in BellSouth's judgment, but only if the exercise
thereof is a commercially reasonable procedure under the circumstances, who in
BellSouth's opinion (i) engages in any misconduct, (ii) is incompetant or (iii)
is negligent in the performance of its, his or her duties. Vendor shall be
responsible for any additional labor costs arising in connection with the
removal requested pursuant to this Section 3.05(d).
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(e) Vendor hereby assigns to the Project the key managers and
personnel ("Key Employees") listed in Annex D. Unless BellSouth otherwise
consents in writing, (i) each Key Employee shall devote his or her full time and
attention to the Project and the duties associated with the positions set forth
opposite their respective names in Annex D, except that XxxxXxxxx acknowledges
and agrees that Xxxx Xxxxx, as General Manager of Vendor's Mid-Atlantic Region,
will devote time and attention to matters not related to the Project, and (ii)
Vendor shall not remove any Key Employee from any such position or reassign any
such Key Employee, either within the Project or to another project, without the
prior written consent of BellSouth, such consent not to be unreasonably
withheld.
3.06 Familiarity with Project and Sites. Vendor represents and warrants
that Vendor is familiar with the Project and Specifications applicable to the
Towers and Improvements, has visited and examined, or will visit and examine,
each Site and the surrounding locale, and knows or will know the working
conditions in and around each Site.
3.07 Quality Standard. Vendor agrees to perform its obligations and
furnish its Services hereunder properly, diligently, and in good faith, in
accordance with the standards of its profession, and in accordance with all
applicable Governmental Requirements. Vendor shall implement quality control
procedures sufficient to ensure compliance with the Specifications, including
without limitation, procedures set forth in Annex C and shall otherwise maintain
quality standards for the Services at least equal to the normal quality
standards applied by Vendor prior to the date of this Agreement.
3.08 Books and Records of Vendor; Right of Inspection by XxxxXxxxx. Vendor
shall keep such accounts as may be necessary for its proper financial management
of the Project under this Agreement. The system of accounting employed by Vendor
shall be such as is reasonably satisfactory to BellSouth. XxxxXxxxx shall be
afforded access to all of Vendor's records, books, correspondence, instructions,
drawings, plans, blueprints, specifications, receipts, vouchers, memoranda and
similar data relating to the Project and this Agreement to the extent relating
to BellSouth's Intended Use, Vendor's compliance with the terms hereof, the
structural integrity of the Improvements, or if BellSouth otherwise provides
reasonable justification therefor, except for privileged documents or where
disclosure is prohibited by law. Such books and records shall be open for
inspection and copying upon reasonable written notice by XxxxXxxxx, at its cost,
and its authorized representatives at reasonable hours at Vendor's principal
office and shall be retained by Vendor for a period of three (3) years after the
expiration of the Master Lease.
3.09 Expansion in Scope of Project. BellSouth will have the right and
option, exercisable in its sole discretion, to cause the Sites in the Project to
include up to 238 additional cell sites not included in the Original Sites, if
such cell sites are set forth in Part II of Annex A or are otherwise agreed to
by Vendor in accordance with this Section 3.09 (the "Additional Sites"), on the
same terms and conditions as are applicable to the Original Sites, by giving
Vendor written notice to such effect from time to time; provided however, that
Vendor shall not (i) be
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obligated to accept any Additional Site listed as a part of Region One on Part
II of Annex A (the "Rejected Additional Site"), and (ii) be obligated to perform
any Services with respect to such Rejected Additional Site. Such notice shall
specify those potential cell sites which, upon BellSouth's selection pursuant to
Section 5.03, would constitute Additional Sites for purposes of this Agreement.
If the sites are not set forth in Part II of Annex A, Vendor shall have thirty
(30) days from receipt of such written notice to provide a written approval or
rejection of such sites. Vendor's failure to respond within such thirty (30) day
period as to any such sites shall be deemed a rejection by Vendor of such sites.
If Vendor rejects any such sites or is deemed to have rejected any such sites,
such sites shall not be Additional Sites and shall not be part of the Project.
Upon BellSouth's giving of such written notice, Vendor shall extend the
performance of its obligations hereunder to any sites that become the Additional
Sites. The parties shall adopt a Project Schedule as to such Additional Sites,
so as to facilitate Completion of all Additional Sites, without affecting the
Project Schedule as to the Original Sites. Vendor acknowledges and agrees that
if it constructs a tower and improvements similar to Towers and Improvements
hereunder on any site, after Vendor has received notice that such Site is in a
search area designated by BellSouth on any site, prior to an election by
BellSouth pursuant to this Section 3.09 for Vendor to include such site in the
Project, such site shall, at BellSouth's election, be subject to the terms of
this Agreement for all purposes. If BellSouth makes any such election as to any
such site, Vendor shall make such site available to BellSouth as though it were
an Additional Site, on the same terms and conditions as are set forth herein and
in the Master Lease, it being understood and agreed that BellSouth or other
Anchor Tenant shall be the anchor tenant of such site, notwithstanding any
agreement Vendor may have entered into with any Other Tenant. Vendor shall cause
any such tower and improvements to comply with all the requirements hereunder
for Towers and Improvements.
3.10 Available Sites in Event of Condemnation. If, prior to the execution
of a Site Lease for a Site, any condemnation occurs as to any Site as
contemplated by Section 20(b) of the Master Lease, Vendor shall, at the request
of BellSouth or the applicable Anchor Tenant, perform all its obligations
hereunder in respect of a replacement site for such condemned Site, satisfactory
to BellSouth, as if such replacement site were an Original Site hereunder,
including without limitation the proposal of potential cell site locations
pursuant to Section 5.03, the construction of a Tower and Improvements on any
selected Site pursuant to and in accordance with Article 6 and the leasing of
such Site to the applicable Anchor Tenant pursuant to the Master Lease and a
Site Lease, provided that the monthly rent payable in respect of such
replacement Site shall be the monthly Rent that would have been payable in
respect of the replaced Site. The Site Schedule, Scheduled Commencement Date and
Scheduled Completion Date for any such replacement site shall be determined by
Vendor and BellSouth consistently with the construction schedules set forth in
this Agreement. This Agreement shall survive the completion of the Project
indefinitely to the extent necessary to give effect to this Section 3.10.
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ARTICLE 4
VENDOR'S UNDERTAKINGS
4.01 Vendor's Undertakings. (a) Commencing on the Effective Date of this
Agreement, Xxxxxx agrees to furnish the Services, for and on behalf of XxxxXxxxx
and to perform such Services in an expeditious manner consistent with the
interests of BellSouth. In the performance of the Services hereunder, Vendor
shall furnish its best skill and judgment (i) in accordance with the standards
established by the industry, (ii) consistent with good development and
construction practices and efficient business practices, (iii) utilizing skill
and judgment available throughout its organization in the performance of this
Agreement to provide its professional knowledge, ideas, experience and abilities
relating to the design, scheduling, development and construction of the Towers
and Improvements, and (iv) in a competent, professional and efficient manner.
(b) Vendor shall promptly notify BellSouth in writing of any part of
the Project that does not comply with any Governmental Requirements to the
extent Vendor is or becomes aware of such noncompliance and such noncompliance
has had or is reasonably likely to have a Material Adverse Effect.
(c) In addition to the Services described in this Agreement,
including without limitation the Vendor Responsibility Matrix, Vendor shall have
such other duties and responsibilities reasonably and customarily required for
developments similar to the Development of each Site and the Project in its
entirety as may be required or necessary from time to time during the design,
development, construction, equipping and Completion of the Project, which other
duties and responsibilities shall be deemed to be Services hereunder; provided,
however, that BellSouth shall not incur any costs or expenses for or in
connection with any such Services.
4.02 Governmental Requirements and Permits. (a) Vendor shall obtain, or
cause to be obtained, the consent or approval of all Governmental Authorities,
and all Permits necessary for the Development of each Site and the Project.
Vendor shall advise BellSouth in writing of any potential significant adverse
issues or problems, including without limitation any delays (i) that could
adversely affect the applicable Scheduled Commencement Date, Site Schedule or
the Project Schedule, or Vendor's ability to meet the Project Completion Date,
or (ii) of the type of which the Project Manager would, in accordance with good
industry practices, customarily receive notice, in connection with obtaining any
approvals from any Governmental Authority.
(b) Except where prohibited by applicable laws, Vendor shall be the
applicant for any and all necessary Permits. Vendor shall coordinate and manage
all professional and technical services required in connection with the
preparation and filing of applications for and obtaining all Permits. Vendor
shall be responsible for diligently preparing and filing all applications for,
and pursuing and obtaining, the Permits.
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(c) At BellSouth's option, BellSouth may assist Vendor in securing
the Permits. BellSouth may elect, in its sole discretion, to join Vendor as
co-applicant for any of the Permits, provided, however, that absent such
election, Vendor shall not use BellSouth's name or any variation thereof in any
such Permit or application therefor. Without BellSouth's prior written approval,
Vendor shall not disclose to any Governmental Authority that BellSouth is
involved in or has any relationship to any Site or the Project. In the event
that Vendor believes in good faith that disclosing BellSouth's relationship to
any Site is required by applicable law, Vendor shall provide BellSouth with
written notice setting forth such belief and requesting BellSouth's approval of
such disclosure to any Governmental Authority specified therein, and BellSouth
shall provide Vendor with its approval or disapproval of such disclosure within
five (5) Business Days of BellSouth's receipt of Vendor's notice. If BellSouth
fails to respond within such five (5) Business Day period, BellSouth will be
deemed to have rejected Vendor's request. In such event or if BellSouth provides
its disapproval within such five (5) Business Day period, Vendor shall be
prohibited from disclosing BellSouth's relationship to such Site or the Project
to any Governmental Authority, provided, however, that the Scheduled
Commencement Date, the Project Completion Date, the Site Schedule and the
Project Schedule, in each case only with respect to the applicable Site, shall
be adjusted by Vendor and BellSouth to the extent of any delays caused by the
failure of BellSouth to permit such disclosure.
(d) Vendor shall use its best efforts to obtain any Permits
necessary to commence construction of the Towers and the Improvements on or
before the Scheduled Commencement Date with respect to each Site, including
without limitation the approval of any necessary rezoning of such Site, grant of
any variance, vacating of any right-of-way, issuance of any order or other
action that may be necessary, or approve any other land use approval necessary,
to commence construction of the Tower and Improvements on such Site. If, despite
such efforts, any Permits required to be obtained before commencement of
construction have not been obtained or could not have been obtained as of the
Scheduled Commencement Date, then Vendor shall continue to exercise its best
efforts to obtain any such Permits as promptly as possible, and the Scheduled
Commencement Date, the Site Schedule, the Project Schedule and the Project
Completion Date, in each case as it applies to such Site, shall be adjusted by
Vendor and BellSouth, as may be commercially reasonable to reflect any
additional time period necessary for obtaining such Permits, and such additional
time shall be deemed to be an Excusable Delay. Notwithstanding the foregoing, if
(i) Vendor (x) fails to obtain any such Permits within six (6) months after the
applicable Scheduled Commencement Date without giving effect to any adjustment
or (y) spends more than $25,000 in costs, fees and expenses (including
reasonable attorneys' fees and expenses) in pursuing Permits for any Site, and
(ii) BellSouth has not exercised its rights under Section 4.02(e), then Vendor
will have the right to cease using its best efforts to obtain such Permits,
exercisable by giving XxxxXxxxx written notice thereof. Not later than ten (10)
days after receiving such notice, BellSouth shall give Vendor notice of its
election of a right under clause (i), (ii) or (iii) of Section 4.02(e) in
respect of such Site. If BellSouth fails to give notice as to any such election,
such Site shall be deemed to be
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rejected by BellSouth pursuant to Section 4.02(e)(iii), and Vendor shall propose
to BellSouth an alternative cell site pursuant to Section 5.03.
(e) If Vendor has not obtained any Permit required for the
Construction of the Tower or any Site and Improvements or Intended Use thereof
(other than as to installation of BellSouth's Improvements), by the applicable
Scheduled Commencement Date, then, at any time after such Scheduled Commencement
Date, BellSouth's sole remedy shall be, at BellSouth's sole option, to (i)
assume responsibility for obtaining such Permit by written notice to Vendor, and
Vendor shall reimburse BellSouth for any costs, fees, or expenses (including
reasonable attorneys' fees and expenses) incurred in pursuing and obtaining such
Permit, to the extent such costs and expenses (including amounts spent by Vendor
in pursuing Permits for such Site) do not exceed $25,000; provided that any
costs, fees and expenses in excess of $25,000 may be incurred upon mutual
agreement of the parties, in which case BellSouth and Vendor shall each pay 50%
of such excess, (ii) reject the Site at no cost or expense to BellSouth,
whereupon such Site shall no longer be a part of the Project or (iii) reject the
Site and cause Vendor to propose additional potential cell sites as
alternatives, in accordance with Section 5.03.
(f) Vendor shall comply with all Governmental Requirements in
performing its obligations under this Agreement, the Master Lease and each Site
Lease, except where the failure to comply could not have a Material Adverse
Effect. Vendor shall indemnify, and hold harmless, each BellSouth Indemnitee
from and against any Claims (including without limitation any fine, penalty or
damage) arising out of Vendor's failure to comply with any Governmental
Requirements including, without limitation, zoning laws and FAA regulations,
unless such failure arises from BellSouth's willful or negligent conduct.
(g) In the event that (i) BellSouth elects to exercise its rights
under Section 4.02(e)(i) or (iii) above, or (ii) any Site is deemed to be
rejected by BellSouth pursuant to the last sentence of Section 4.02(d), the
Scheduled Commencement Date, the Site Schedule, the Project Schedule and the
Project Completion Date, in each case as it applies to such Site, shall be
adjusted by Vendor and BellSouth, as may be commercially reasonable to reflect
any additional time period necessary for obtaining Permits or acquisition of a
new Site.
ARTICLE 5
PRE-CONSTRUCTION PHASE
5.01 Development Plan. Vendor shall prepare a plan for the Development of
each Site which shall include, but not be limited to, the provision of searching
services in the designated search areas listed in Annex A, identification of
three (3) potential cell site locations within each designated search area and a
schedule for presenting such candidate cell sites to BellSouth for final
selection of cell site locations in accordance with Section 5.03, the
facilitation of the Acquisition of such Site for the Project, the Acquisition,
design services, development plan and coordination of construction activities.
Each such plan for a Site shall be
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(i) reflected in the implementation of the Project Schedule for such Site, (ii)
coordinated with the implementation of the Project Schedule for the other Sites
in its Cluster and (iii) consistent with the Project Schedule.
5.02 Due Diligence. Vendor shall, through one or more qualified
consultants: (i) compile and review all existing data with respect to each Site
from a seller or lessor of such Site and any and all Governmental Authorities
having jurisdiction thereof, and any other Persons who may have relevant
information necessary to develop each Site; (ii) cause to be performed any and
all analyses, examinations, investigations, tests and inspections of each Site,
including, but not limited to, environmental studies, surveys, geo-technical
studies, soil borings and the like and cause to be accurately completed and
returned to BellSouth with respect to each Site, the Site Data Package attached
hereto as Annex N; (iii) make, or cause to be made, inquiries of all
Governmental Authorities and Persons who will furnish electric power, telephone
service or any other utility to each Site as to any matters which may affect or
be necessary to the Development of each Site; (iv) determine all Governmental
Requirements necessary for the Development of each Site, including, but not
limited to, the Tower and Improvements, zoning laws or regulations. Vendor shall
perform or supervise the activities described in items (i) through (iv) above,
and, upon XxxxXxxxx's request, shall deliver to BellSouth copies of written
reports, memoranda or material correspondence prepared for Vendor with respect
to the foregoing.
5.03 Proposal of Cell Sites. Subject to Section 5.01, from time to time
Vendor shall propose to BellSouth three (3) potential cell site locations for a
Site within each search area set forth in Annex A, in accordance with the
Project Schedule, unless Vendor can demonstrate to BellSouth's reasonable
satisfaction that three (3) such potential sites do not exist in such area,
gives BellSouth an officer's certificate to such effect, duly executed by an
authorized officer of Vendor, and proposes as many potential cell site locations
as comply with the requirements of the next succeeding sentence. Vendor shall
not propose any such potential cell site unless it reasonably believes that such
site meets the requirements of this Agreement for a Site in all material
respects. If none of the sites proposed by Vendor for any search area meets such
requirements, Vendor shall continue proposing additional potential cell sites,
until one becomes a Site hereunder, unless Vendor can demonstrate to BellSouth's
reasonable satisfaction that no such site is available and gives BellSouth an
officer's certificate to such effect, duly executed by an authorized officer of
Vendor. Not later than five (5) Business Days after receipt of any such proposal
as to any potential cell site, BellSouth shall notify Vendor as to which (if
any) of such proposed cell sites it views in its judgment as acceptable,
whereupon such cell sites shall become Sites for all purposes of this Agreement.
BellSouth's selection of any proposed cell site as a Site shall not relieve or
release Vendor from performing any of its obligations hereunder in respect of
such Site, or otherwise affect any of Vendor's obligations hereunder. Promptly
following BellSouth's selection of any such Site, BellSouth shall deliver to
Vendor a Notice to Proceed for such Site.
5.04 Utilities. Vendor shall negotiate with the electric utility company
servicing each Site a plan for the provision of service to such Site required
for the Intended Use of the Site.
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Vendor shall make application for such electric utility company to furnish
service to such Site as may be adequate for the Intended Use and the use and
enjoyment of the Site by all Other Tenants that may exist from time to time.
Vendor shall cause such electric utility company to provide connection to such
Site. In the case of telephone company connection facilities, all obligations
remain with the Vendor to effect connections required for the Intended Use of
the Site, with the exception that the Vendor shall utilize BellSouth as their
agent to work with the local telephone company on the development of the
servicing plan. Annex C sets forth additional details of electric utility and
telephone company connections.
ARTICLE 6
CONSTRUCTION PHASE
6.01 General. (a) The parties shall hold progress meetings, and Vendor
shall submit progress reports to BellSouth, in accordance with the
implementation of the Project Schedule or otherwise on a weekly, bi-weekly or
monthly basis as may be agreed between parties. Progress reports will show for
each Site, at a minimum, and not by way of limitation, all dates and schedules
referred to in the Project Schedule and the applicable Site Schedule, any
anticipated delays, other relevant information, and the corresponding activity
period. The progress reports shall also show the progress of all Sites included
in each Cluster. In addition, BellSouth may request and Vendor shall facilitate
progress meetings with Vendor's key managers and subcontractors, including the
establishment of oversight committees to monitor specific work in progress on
Sites at times and locations agreed upon by BellSouth and Vendor in writing no
less than seven days prior to such meetings. Progress reports shall be for
planning purposes and monitoring compliance with this Agreement.
(b) Should any information or approval be required from BellSouth as
Work progresses, Vendor shall request such information or approval in writing.
Said requests shall be submitted sufficiently in advance of the date upon which
the information or approval is needed, but in no event less than five (5) days
in advance of such date unless Vendor becomes aware of such required information
or approval in less than such 5-day period, to permit BellSouth to act without
affecting the progress or sequence of the Work. Such request shall provide a
reasonable time for a response by XxxxXxxxx.
(c) Vendor shall, on a periodic basis (but not less frequently than
weekly), review the progress of the construction, evaluate the percentage of
completion of each Site and its Cluster as indicated in the Project Schedule and
the applicable Site Schedule and review such percentages with BellSouth. The
construction schedule report shall be distributed not less than weekly during
the construction phase of the Project, indicating the actual progress compared
to the scheduled progress of the Work in accordance with the applicable Site
Schedule, the schedules for all Sites in the applicable Cluster and the Project
Schedule. The reports shall compare the actual construction dates to scheduled
construction dates for each Site and the Cluster.
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May only be used for Authorized BellSouth Business Purposes and only by
Authorized Individuals.
(d) Notwithstanding anything to the contrary in this Agreement,
Vendor's obligation to keep BellSouth informed on the status of the Project
under this Agreement, including, without limitation, progress meetings, progress
reports, establishment of oversight committees and construction schedule
reports, shall be managed to the extent directed by the BellSouth local market.
6.02 Performance of the Work. Vendor shall have the responsibility and
obligation to perform the Work in accordance with Annex D. Vendor shall provide
a management team or a representative on each Site to provide supervision and
administration of the Completion of the Work for each such Site. Vendor shall
establish and implement coordination and communication procedures between Vendor
and BellSouth. Vendor shall establish and implement procedures for reviewing and
processing requests for clarifications and interpretations of the
Specifications, including, without limitation, drawings and technical
specifications, schedule adjustments; and such other procedures as may be
required to Complete the Project.
6.03 [reserved]
6.04 Site and Project Schedules. (a) To enable the Towers and the
Improvements to be planned, scheduled and Completed in an orderly and
expeditious manner, Vendor acknowledges and agrees that each Site Schedule shall
be consistent with the Specifications and the implementation of each stage of
the Project Schedule.
(b) Upon the occurrence of an Excusable Delay, the Site Schedule for
any affected Site, the Project Schedule, the Scheduled Commencement Date and the
Project Completion Date, each only as they apply to the affected Site, shall be
adjusted to reflect any additional time which will be required for the
performance of any of the duties or obligations of Vendor under this Agreement
as a result of such event, provided that the extent of such adjustment shall be
subject to the prior written approval of BellSouth, which approval shall not be
unreasonably withheld or delayed.
(c) Except as set forth in Section 6.04(b) as to an individual Site,
neither the Site Schedule for any Site nor the Project Schedule shall change,
and Vendor will have no right to cause any such change, without prior written
approval by BellSouth. Within five (5) Business Days per Site after the receipt
of any request from Vendor for a change to any Site Schedule or the Project
Schedule, BellSouth shall notify Vendor in writing of its approval or
disapproval of such proposed change. Failure of BellSouth to respond within said
five (5) Business Day period shall constitute and be deemed an approval of such
requested change unless the change is, or results in, an extension of the
Scheduled Completion Date with respect to any Site, any other Site in the
Cluster in which such Site is located, or the Project, in which case BellSouth's
failure to respond within such five (5) Business Day period shall constitute and
be deemed a disapproval.
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May only be used for Authorized BellSouth Business Purposes and only by
Authorized Individuals.
(d) Vendor acknowledges and agrees that it has an affirmative
obligation and responsibility promptly to notify BellSouth of any circumstance
which affects or may affect any Site Schedule in any material respect or the
Project Schedule and the extent to which it is anticipated such Site Schedule or
the Project Schedule may be affected as a result of such circumstance.
6.05 Quality Review. Vendor shall establish and implement a program to
monitor the quality of the construction during the implementation of the Project
Schedule. The purpose of the program shall be to assist in guarding against
defects and deficiency in the Work. At any time and from time to time BellSouth
may in its discretion, and without need to demonstrate cause, conduct an
independent program to monitor the quality of the construction and Vendor's
compliance with its obligations hereunder.
6.06 Compliance with Requirements, Permits, Bonds and Insurance during
Construction. Vendor shall comply with all Environmental, Health and Safety
Requirements as they relate to the construction of the Towers and the
Improvements in connection with the Project, except for noncompliances that have
not had and are not reasonably likely to have a Material Adverse Effect. Vendor
shall, at its own cost and expense, procure and maintain all licenses and
Permits required by local, state or federal regulatory agencies and authorities
with respect to the construction, and shall comply with all local, state and
federal laws, ordinances, rules and regulations applicable to this Agreement,
except for failures that have not had and are not reasonably likely to have a
Material Adverse Effect. If, notwithstanding Vendor's diligent efforts, Vendor
experiences any delays in obtaining any license or Permit related to the
construction phase of the Project on time, such delay shall constitute an
Excusable Delay and shall be subject to Section 6.04(b). Vendor shall indemnify
and hold harmless each of the BellSouth Indemnitees from and against any fine,
penalty or damage arising out of the failure by Vendor, its Affiliates or any of
their respective employees, agents, contractors, subcontractors, advisors or
consultants to comply with any such laws, ordinances, rules or regulations
including, without limitation, zoning laws and FAA regulations, unless such
failure arises from BellSouth's or the Carolina Partnership's willful or
negligent conduct. Vendor shall obtain, or cause to be obtained, all bonds and
insurance, including without limitation the insurance required under Article 10,
which are consistent with sound commercial practices in Vendor's industry for
the commencement of construction and Completion of the Work with respect to each
Site.
6.07 Work Permits. Vendor shall be the applicant for any and all necessary
work Permits, except as BellSouth may otherwise consent pursuant to Section
4.02(c). Vendor shall coordinate and manage all professional and technical
services required in connection with the preparation and filing of applications
for and obtaining all Permits. Vendor shall be responsible for ensuring that all
applications for the Permits are diligently prepared and filed, and pursued and
obtained.
6.08 Construction. (a) Vendor, at Vendor's sole cost and expense, shall
cause the Towers and the Improvements to be constructed and installed diligently
and in a timely fashion,
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with the industry standard workmanship and materials, in accordance with the
Specifications, the implementation of the Project Schedule for each Site and all
applicable laws. BellSouth will have the right to approve or reject the quality
of all materials, equipment and systems to be used in the Completion of the
Towers and Improvements if such materials, equipment or systems do not comply
with the Specifications or are not commercially suitable for the Intended Use.
Vendor shall supervise the work and activities of the contractors,
subcontractors, engineers and other Persons engaged in the design, development,
construction and installation of the Towers and Improvements. Vendor shall
obtain, or cause to be obtained, all warranties. Vendor shall cause (i) the
construction of a Tower and other Improvements on each Site in accordance with
the applicable Site Schedule subject to Vendor's rights under Section 7.01 and
(ii) the Completion of the Project to occur on or before the Project Completion
Date.
(b) If BellSouth requests changes to any Specifications, Vendor
shall promptly make such changes to the Specifications and, the parties shall
adjust the Scheduled Commencement Date, the Site Schedule, the Project Schedule
and the Project Completion Date, in each case as it applies to the affected
Site, as may be necessary or required, and such adjustment shall be an Excusable
Delay, subject to BellSouth's reimbursement of Vendor for all reasonable
out-of-pocket costs incurred by Vendor in making such changes, and subject to
such changes not reducing the multi-tenant colocation capability of the Tower.
6.09 Project Data. In performing Services hereunder, Vendor shall compile
data concerning the Project and furnish such data to BellSouth, all in
accordance with the procedures set forth in Annex F.
6.10 Warranty. Vendor does hereby warrant and guarantee that the Tower and
Improvements on each Site and all workmanship and materials incorporated therein
will be constructed in accordance with the Specifications and will be free from
defects in workmanship for a period of twelve (12) months commencing on the
Completion Date for such Site (the "Warranty Period"). At BellSouth's request,
Vendor shall assign to BellSouth a non-exclusive right to enforce all warranties
respecting materials used by Vendor in Completing the Project and shall secure
any and all consents from the suppliers of such materials to make such
assignment effective or enforce any such warranties on behalf of BellSouth. If
any defect or deviation should exist, develop, be discovered or appear within
the Warranty Period, Vendor, at its sole cost and expense, immediately upon
demand, shall fully and completely repair, correct and eliminate such defect or
deviation. The foregoing warranties and guarantees are cumulative of and in
addition to, and not restrictive of or in lieu of, any and all other warranties
and guarantees provided for or required by the Specifications, any other
provision of this Agreement or applicable laws, and shall survive the expiration
or termination of this Agreement.
6.11 Access and Inspection. (a) The construction shall be performed in
such a manner as will permit BellSouth to inspect each Site. BellSouth may, at
its election, conduct such inspections as it deems necessary at each Site, upon
reasonable notice to Vendor, and provided that BellSouth shall not delay, hinder
or interfere with performance of construction. If
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May only be used for Authorized BellSouth Business Purposes and only by
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BellSouth notifies Vendor of any observed defects or nonconformities with the
Specifications, Vendor shall promptly correct any defect or nonconformity in
such time and manner as will permit Completion of each Site or Sites in
accordance with the Site Schedule and the Project Schedule. The failure of
BellSouth to inspect any Site or Sites, however, will not in any way limit,
waive, or otherwise affect the rights of BellSouth with respect to any of
Vendor's warranties or obligations under this Agreement.
(b) BellSouth will, upon reasonable notice to Vendor, have access to
any Site during all working hours, and will have the right to observe the Work
performed; provided, however, that BellSouth shall not delay, hinder or
interfere with the performance of the Work. BellSouth's inspection of any Work
will not relieve Vendor of any of its obligations to perform the Work in
accordance with this Agreement, including without limitation the Specifications,
except to the extent a specific deviation from the Specifications at any Site is
or has been accepted in writing by BellSouth. Work found not to be in accordance
with the Specifications shall be replaced or re-performed by Vendor, except to
the extent a specific deviation from the Specifications is or has been accepted
in writing by BellSouth. BellSouth will have the right to reject materials and
workmanship which are defective or not in conformance with the Specifications.
Rejected Work at any Site must be promptly removed from such Site. Failure on
the part of BellSouth to reject defective or nonconforming Work will not be
construed to imply an acceptance of such Work; provided, however, to the extent
a specific deviation from the Specifications is or has been accepted in writing
by BellSouth, such deviation shall not be deemed to be defective or
nonconforming Work.
(c) Should BellSouth consider it necessary or advisable at any time
before Completion to examine Work already completed therein, Vendor shall, on
request of BellSouth, promptly furnish all necessary facilities, labor, and
material for that purpose. If such Work is found to be defective in any material
respect, Vendor shall pay all expenses of such examination. If, however, such
Work is not found to be defective in any material respect, BellSouth shall pay
all expenses of such examination and restoration of the Work. Any delays caused
by BellSouth's incorrect assessment that any Work is defective shall constitute
an Excusable Delay and be subject to Section 6.04(b).
(d) BellSouth shall have a non-exclusive right and easement to
access each Site on a twenty-four (24) hour, seven (7) day per week basis, on
foot or motor vehicles, for the purposes of inspecting the construction on such
Site. BellSouth may, upon written notice to Vendor at least twenty-four (24)
hours before entering any Site, access such Site and climb the Tower, provided
that if such entry is necessary, required or advisable in respect of an
emergency, no prior written notice shall be required. Only authorized employees,
contractors, subcontractors, engineers, agents or representatives of BellSouth
will be permitted to enter any Site. XxxxXxxxx agrees that any employee,
contractor, subcontractor, engineer, representative or agent directed or
permitted by BellSouth to enter any Site will be covered by the insurance
described in Article 10.
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6.12 Completion. (a) Promptly following the Completion of the Work at any
Site in accordance with the requirements of the Specifications and the
requirements of this Agreement, including without limitation the construction of
the Tower and the Improvements on such Site and the performance of the final
cleanup thereon, Vendor shall notify BellSouth in writing of its good faith
belief that such Site is Completed. The parties shall execute a Completion
Certificate with respect to such Site as soon as reasonably practicable after
BellSouth receives such notification, provided, that BellSouth shall not
unreasonably withhold or delay execution of the Completion Certificate with
respect to such Site.
(b) In addition to any right BellSouth may have under Section 6.11,
BellSouth will have the right to (i) inspect any Site at any time after
BellSouth receives the notification under Section 6.12(a) and prior to any date
on which the Completion Certificate is executed and (ii) notify Vendor in
writing if such inspection by BellSouth reveals that Completion has not occurred
with respect to any Site or Sites. Promptly after receipt of any such
notification, Vendor shall promptly cause any unperformed Work to be performed.
ARTICLE 7
COLOCATION
7.01 Identification of Colocation Sites. For those Sites in respect of
which Vendor has not entered into a Ground Lease as of the date of this
Agreement, BellSouth shall notify SBA within five (5) business days after the
date of this Agreement or simultaneously with the submission of an Additional
Site, of any known existing cell sites in such search area that would be
suitable for the colocation of BellSouth's Improvements, consistent with the
requirements of Annex I ("Potential Colocation Sites"), including without
limitation sites that would be available by virtue of existing contractual
arrangements to which BellSouth is a party ("Existing Colocation Arrangements").
BellSouth shall identify the location of such Potential Colocation Site and
specify whether or not the lessor of such Potential Colocation Site is a party
to an Existing Colocation Arrangement. BellSouth acknowledges that Vendor
maintains a preference to fulfill BellSouth's needs for wireless communications
towers as to the Sites via suitable colocation sites that may be available
within the search areas, and consequently, Vendor shall use good faith efforts
to maximize colocation opportunities. XxxxXxxxx agrees to accept any colocation
opportunity (including Potential Colocation Sites and Existing Colocation
Arrangements) presented by Vendor so long as the rent is consistent with the
rent payable for BellSouth's other colocations for similar sites and such
opportunity will permit BellSouth to lease space on commercially reasonable
terms and conditions, consistent with BellSouth's requirements as set forth
herein. BellSouth shall pay for Vendor's Colocation Services in accordance with
Annex I to the extent performed at BellSouth's request, for Potential Colocation
Sites or any other colocation sites. Vendor shall comply with the requirements
of Section 8.05 as to any Potential Colocation Sites or other colocation sites,
and BellSouth's obligations under this Section 7.01 are subject to Vendor's
performance of such obligations.
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May only be used for Authorized BellSouth Business Purposes and only by
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7.02 Other Colocation Services. If any Potential Colocation Site or other
colocation sites identified by Vendor (and approved by BellSouth) or BellSouth
is available for colocation, Vendor at BellSouth's written direction, shall
commence negotiating a space lease for such Site. If the terms and conditions of
the lease and the proposed colocation for any Potential Colocation Site are
acceptable to BellSouth, upon approval of such terms and conditions by
BellSouth, as evidenced by BellSouth's execution of a site lease therefor, such
Potential Colocation Site shall become a Site for purposes of this Agreement,
shall be added to the scope of the Project and shall be covered by the Project
Schedule. Thereafter Vendor shall perform such other Colocation Services (as
defined in Annex I) as BellSouth may direct, in accordance with this Agreement.
XxxxXxxxx agrees to pay Vendor the applicable fees for any such Colocation
Services in the respective amounts set forth in Annex I.
ARTICLE 8
SITE MATTERS
8.01 Site Acquisition. In order to permit the construction and
installation of the Tower and the Improvements on each Site, SBA Towers shall
acquire either fee simple title to, or a leasehold interest in, each Site. Each
Site in which SBA Towers acquires either a fee simple title or a leasehold
interest shall be free and clear of all Liens other than Permitted Liens. Except
as set forth in Schedule 8.01, the Ground Lease for each Site in which SBA
Towers acquires a leasehold interest shall be substantially in the form attached
hereto as Exhibit C, except for Colocation Sites; provided that Ground Leases
for Colocation Sites shall be subject to BellSouth's prior written approval, not
to be unreasonably withheld, prior to such site becoming a Colocation Site.
8.02 Vendor's Inspection of Site Prior to Scheduled Commencement Date.
Vendor shall not effect the Acquisition of any Site unless, prior to the
Acquisition Date, Vendor and its agents, employees, consultants, contractors and
subcontractors, have entered such Site and conducted such due diligence,
examinations, investigations, tests and inspections ("Inspections") with respect
to such Site as are customary in the industry, together with such other
Inspections as Vendor customarily performs or are necessary or advisable under
the circumstances and Vendor finds the results of such Inspections to be
satisfactory. In the event that Vendor determines, in Vendor's reasonable
judgment, that the results of such Inspections are not satisfactory, Vendor
shall give BellSouth notice to such effect and thereafter such site shall no
longer be a Site hereunder and Vendor shall identify and propose to BellSouth a
new potential cell site location for a Site pursuant to and subject to Sections
5.01 and 5.03 hereof, and the Site Schedule, the Scheduled Commencement Date,
the Project Schedule and the Project Completion Date, each as they apply to the
applicable Site, shall be adjusted to reflect any additional time which will be
required for the performance of any of the duties or obligations of Vendor under
this Agreement as a result of such event, as an Excusable Delay.
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Authorized Individuals.
8.03 Hazardous Waste and Contamination Investigation. (a) Prior to the
Acquisition Date for any Site, Vendor shall cause the Environmental Assessment
on such Site to be performed. Upon BellSouth's request, Vendor shall provide
BellSouth with copies of all such Environmental Assessments.
(b) Within five (5) Business Days after discovery of any
environmental condition on any Site not disclosed by, or in excess of the
conditions disclosed by, the Environmental Assessment, Vendor shall advise
BellSouth in writing of such condition and its effect upon the Site Schedule and
the Project Schedule. All costs and expenses incurred by Vendor arising out of
or by reason of the discovery of any such condition on the Site (including,
without limitation, costs and expenses paid or incurred to rectify such
condition) shall be borne by Vendor. The applicable Site Schedule, the Project
Schedule, the Scheduled Commencement Date and the Project Completion Date, each
only as they apply to the affected Site, shall be adjusted pursuant to Section
6.04(b) to reflect all additional time which will be required for the
performance of any of the duties or obligations of Vendor under this Agreement
as a result of any such condition, and the adjustment shall be deemed an
Excusable Delay.
8.04 Geotechnical Subsurface and Soil Investigation. (a) Vendor shall
obtain, perform and analyze all reasonably appropriate geotechnical data, soil
and subsurface tests and other soil engineering tests and reports necessary to
the design, engineering, permitting, and construction of the Tower and the
Improvements (except that the provisions of this Section 8.04 shall not apply to
the Environmental Assessment).
(b) If Vendor shall have timely obtained all reasonably appropriate
tests, but, nonetheless, concealed and unknown conditions that affect the
performance of the Work are encountered below ground or in an existing structure
other than the Work, then (i) Vendor shall bear all costs and expenses arising
out of or by reason of the existence of any such condition on the Site and (ii)
the Scheduled Commencement Date, the Site Schedule, the Project Schedule and the
Project Completion Date, in each case as it applies to such Site, shall be
adjusted to reflect all additional time which will be required for the
performance of any of the duties or obligations of Vendor under this Agreement
as to such Site as a result of any such condition. Notwithstanding anything to
the contrary in this Agreement, Vendor's obligation to pay all losses and
expenses relative to an environmental conditions under Section 8.03(b) or a
concealed, unknown condition under Section 8.04(b) is limited to $10,000 per
Site in the aggregate. If such costs are more than $10,000 for a Site, Vendor
may elect to reject such Site and such Site shall no longer be part of the
Project or subject to this Agreement.
8.05 Additional Environmental Requirements. Prior to commencement of
construction in respect of any Site (except as to any Potential Colocation Sites
or other colocation sites, prior to obtaining any Permit), and as a condition to
any Anchor Tenant's obligation to accept any Site, Proposed Colocation Site or
other colocation site or opportunity from Vendor, Vendor shall perform an
analysis to determine whether (i) the proposed site is in a historical district,
(ii) there is any endangered species that may be affected by the proposed site,
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(iii) there are Resource Conservation and Recovery Act issues respecting the
proposed site, including without limitation diesel fuel spills or similar
conditions or (iv) the potential site is located in a floodplain (as defined by
the FCC). Vendor shall deliver the results of each such analysis to BellSouth
upon completion of such analysis, together with a written certification based on
the consulting reports received by Vendor, to the results thereof, including
Vendor's certification that there is no condition of the type described in
clause (i), (ii), (iii) or (iv). All costs and expenses incurred by Vendor
arising out of or by reason of compliance with the requirements of this Section
8.05 shall be borne by Vendor.
ARTICLE 9
AGREEMENT TO LEASE
9.01 Assignment to the Bankruptcy Remote Entity. Upon issuance of the
Completion Certificate with respect to a Site, SBA Towers shall convey, transfer
and assign to the Bankruptcy Remote Entity all of its right, title and interest
in and to such Site (being fee simple title to or a leasehold interest in such
Site), free and clear of all Liens, except Permitted Liens, and the Bankruptcy
Remote Entity shall own, operate, and manage such Site.
9.02 Right to Lease. Immediately following the Acquisition Date of any
Site effected by Section 9.01, the Bankruptcy Remote Entity shall lease an
exclusive space on the Tower and Improvements of such Site (the "Premises") to
the applicable Anchor Tenant, and BellSouth or such designee shall accept and
rent such Premises from the Bankruptcy Remote Entity, all pursuant to and in
accordance with the terms and conditions set forth in the Master Lease and a
Site Lease for such Site, provided that no Rent is payable for any Site unless
and until the earlier of (i) Completion of all Sites in the applicable Cluster,
except to the extent of an Excusable Delay or (ii) installation of BellSouth's
Improvements on such Site.
9.03 Recordation of Ground Leases and Site Leases. Each Ground Lease or a
memorandum of Ground Lease and each Site Lease shall be in recordable form. SBA
Towers and the Bankruptcy Remote Entity shall (i) submit to the appropriate
recording office the memorandum of Ground Lease for any Site in which the
Bankruptcy Remote Entity has a leasehold interest prior to the execution and
recordation of a Site Lease for such Site and (ii) submit to the appropriate
recording office each Site Lease not later than seven (7) days after the
execution thereof, and cause such memorandum or Site Lease, as the case may be,
to be so recorded in such recording office.
9.04 Effect of Master Lease and Site Lease. The parties acknowledge and
agree that upon the Completion of a Site, in addition to any obligations of
Vendor hereunder that survive the Completion of such Site, the respective duties
and responsibilities of the parties pertaining to the lease of such Site shall
be set forth and governed by the Master Lease and a Site Lease for such Site.
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Authorized Individuals.
ARTICLE 10
INSURANCE
10.01 Vendor's Insurance Requirements. Throughout the term of this
Agreement, Vendor shall carry and maintain in force the following insurance:
(a) Commercial General Liability Insurance (including protective
liability coverage on operations of independent contractors engaged in
construction, blanket contractual liability coverage, products liability
coverage, and explosion, collapse and underground hazards coverage) for the
benefit of Vendor, against claims for personal injury, bodily injury and
property damage, with a limit of not less than $5,000,000 in the event of
personal injury or bodily injury to any number of persons or of damage to
property arising out of any one occurrence, and not less than $5,000,000 in the
aggregate applicable to this Project. Such insurance (which may be furnished
under a primary policy or an "umbrella" policy or policies) shall also include
coverage against liability for bodily injury or property damage arising out of
use by or on behalf of Vendor of any owned, non-owned or hired automotive
equipment for a limit not less than that specified above. Such insurance shall
include a cross-liability/severability of interest provision and shall otherwise
comply with the requirements applicable to such insurance.
(b) Worker's compensation and related insurance covering all
employees of Vendor employed in, on or about the Project in order to provide
statutory benefits as required by the applicable laws and otherwise in
compliance with the requirements applicable to such insurance.
(c) Comprehensive automobile liability insurance with limits of not
less than $1,000,000 per occurrence and in the aggregate for bodily injury,
including death and property damage and otherwise in compliance with the
requirements applicable to such insurance.
(d) Employer's liability insurance with limits of not less than
$5,000,000 each accident/$5,000,000 each employee by decease/$5,000,000 policy
limits and otherwise in compliance with the requirements applicable to such
insurance.
(e) Vendor's all risk insurance policy with limits of not less than
full replacement cost of each Tower and the Improvements of each Site.
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Authorized Individuals.
10.02 Evidence of Insurance. Vendor shall furnish BellSouth with
appropriate certificates evidencing the insurance required to be maintained by
Vendor hereunder. If Vendor for any reason fails to obtain and/or maintain in
force any of the insurance required under Section 10.01, then Vendor shall, and
Vendor does hereby agree to, indemnify each BellSouth Indemnitee against, and
hold, save, and defend each BellSouth Indemnitee harmless from, any and all
claims, demands, actions, causes of action, suits, liabilities, damages, losses,
costs and expenses of any kind or nature whatsoever (including, without
limitation, reasonable attorneys' fees and court costs incurred in enforcing
this indemnity and otherwise) which such BellSouth Indemnitee may suffer or
incur, or which may be asserted against such BellSouth Indemnitee, whether
meritorious or not, against which such BellSouth Indemnitee would or should have
been insured under any required insurance which Vendor does not for any reason
obtain or maintain in force.
10.03 Waiver of Subrogation. Each insurance policy maintained by Vendor
with respect to the Project shall contain a waiver of subrogation clause, so
that no insurer shall have any claim over or against BellSouth, by way of
subrogation or otherwise, with respect to any claims which are insured under any
such policy, except for workers compensation insurance.
ARTICLE 11
LIABILITY; INDEMNITY
11.01 Liquidated Damages. (a) Except as expressly provided in this
Agreement, if Vendor delays in performing any of its obligations pursuant to any
Site Schedule or the Project Schedule, then BellSouth will have the option,
exercisable in its sole discretion, to adjust any Site Schedule or the Project
Schedule so as to allow Vendor to perform the obligations which Vendor could not
perform due to Vendor's delay to a later time; provided that no such adjustment
shall be effective unless evidenced by a writing executed by BellSouth.
(b) Except as provided in Section 14.02, if Vendor fails to meet its
obligation to Complete any Site or the Project or any phase or milestone thereof
in accordance with the applicable Site Schedule or the Project Schedule (subject
to any extensions thereof in respect of Excusable Delays pursuant to Section
6.04(b)), BellSouth will have the right to liquidated damages in respect of each
Site that has not been Completed in an amount equal to $5,000 per month for each
month that such failure continues (the "Liquidated Damages") (subject to
proration). If Vendor owes Liquidated Damages in respect of any Site, and such
Site is Completed by the date that is thirty (30) days after the Scheduled
Completion Date therefor, BellSouth shall receive credits in the aggregate
amount of such Liquidated Damages against the next succeeding monthly rent
payments owed under the applicable Site Lease. If such Site is not Completed by
such date, Liquidated Damages shall be payable by Vendor in cash, on demand,
made by BellSouth at any time after such date.
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(c) The payment of the Liquidated Damages shall not relieve Vendor
from its obligations to construct and install the Towers and Improvements, and
perform its other obligations hereunder in accordance with the respective Site
Schedules and the Project Schedule. The parties hereto acknowledge that the
amount of the Liquidated Damages payable by Vendor to BellSouth under this
Section 11.01 constitute liquidated damages and not penalties, that the injuries
to BellSouth caused by Vendor's delays described above are difficult or
impossible to estimate accurately, and that the sums payable herein are
reasonable estimates of the probable losses associated with such injuries. The
parties further acknowledge that BellSouth may not assert other damages separate
from and in addition to the Liquidated Damages and this shall be BellSouth's
sole remedy with respect to Vendor's failure to fulfill its obligation asserted
in Section 11.01(b).
11.02 Indemnity of BellSouth. Vendor shall, and Vendor does hereby agree
to, indemnify and hold harmless each BellSouth Indemnitee from and against any
loss, damage, liability, cost, expense, action or claim, including reasonable
attorneys' fees and amounts paid in settlement ("Claims"), by reason of or
arising out of: (a) personal injury, death, and damage to tangible property
resulting from the intentional or negligent acts or omissions of Vendor's
directors, officers, employees, agents, consultants, contractors or
subcontractors in connection with the Completion of the Project and performance
of this Agreement; (b) Vendor's breach of its obligations under this Agreement,
including without limitation in respect of any Services; and (c) Vendor's breach
of any representation or warranty in this Agreement, including without
limitation its warranty pursuant to Section 6.10.
11.03 Indemnity of Vendor. BellSouth shall, and XxxxXxxxx does hereby
agree to, indemnify and hold harmless each Vendor Indemnitee from and against
any Claim, by reason of or arising out of (a) a personal injury, death, and
damage to tangible property resulting from the intentional or negligent acts or
omissions of BellSouth's directors, officers, employees, agents, consultants,
contractors or subcontractors in connection with BellSouth's performance of this
Agreement, and (b) BellSouth's breach of its obligations under this Agreement.
11.04 Consequential Damages. Notwithstanding anything to the contrary
contained herein, neither party shall be liable to the other party under this
Agreement for loss of profits, loss of business, or any special, exemplary,
consequential or incidental damages of any kind or nature or for any reason,
including, without limitation, the breach of this Agreement, or any termination
of this Agreement, whether such liability is asserted on the basis of contract,
tort (including negligence or a strict liability) or otherwise, even if the
party has been advised of the possibility of such damages.
11.05 Relationship to Insurance. In no event shall the indemnification
provisions of Section 11.01 above diminish, affect, impede or impair, in any
manner whatsoever, the benefits to which any BellSouth Indemnitee may be
entitled under any insurance policy required by this Agreement or otherwise with
respect to the Project, or under the terms of any waiver of any subrogation
contained therein.
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May only be used for Authorized BellSouth Business Purposes and only by
Authorized Individuals.
11.06 No Third-Party Beneficiaries. None of the duties and obligations of
Vendor under this Agreement shall in any way or in any manner be deemed to
create any liability of Vendor to, or any rights in, any person or entity other
than the BellSouth Indemnitees and the Vendor Indemnitees.
ARTICLE 12
ADDITIONAL REPRESENTATIONS AND WARRANTIES
12.01 BellSouth's Representations and Warranties. BellSouth represents and
warrants to Vendor that (i) BellSouth is a corporation, duly organized, validly
existing and in good standing under the laws of the State of Delaware, (ii) the
Carolinas Partnership is a limited partnership, duly organized, validly existing
and in good standing under the laws of the State of Delaware, (iii) BellSouth is
the sole general partner of the Carolinas Partnership, and (iv) each of
BellSouth and the Carolinas Partnership has the full and complete right, power
and authority to enter into this Agreement and perform their respective duties
and obligations under this Agreement in accordance with the terms and conditions
of this Agreement.
12.02 Vendor's Representations and Warranties.
(a) SBA Towers represents and warrants that SBA Towers is a
corporation, duly organized, validly existing and in good standing under the
laws of the State of Florida, and has the full and complete right, power and
authority to enter into this Agreement and perform SBA Towers' duties and
obligations under this Agreement in accordance with the terms and conditions of
this Agreement.
(b) SBA represents and warrants that SBA is a corporation, duly
organized, validly existing and in good standing under the laws of the State of
Florida, and has the full and complete right, power and authority to enter into
this Agreement and perform SBA's duties and obligations under this Agreement in
accordance with the terms and conditions of this Agreement.
(c) Each of SBA Towers and SBA represents and warrants to BellSouth
that at all times during the term of this Agreement, SBA Towers and SBA shall
have sufficient funds available to Complete the Project in accordance with the
Site Schedules and Project Schedule.
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RESTRICTED: Contains Private and/or Proprietary Information.
May only be used for Authorized BellSouth Business Purposes and only by
Authorized Individuals.
ARTICLE 13
DEFAULT AND TERMINATION
13.01 Default. (a) A party shall be in default under this Agreement if
such party fails to perform any of its duties and obligations under this
Agreement and does not cure or remedy such failure to perform within ten (10)
days after receipt of written notice from the other party with respect thereto;
provided, however, that, if such failure to perform shall necessitate longer to
cure than such ten (10) day period, then such cure period shall be extended for
such period of time as is reasonably necessary to cure such failure to perform,
provided, further, that a defaulting party commences such cure within ten (10)
days after receipt of written notice from a non-defaulting party and thereafter
proceeds diligently and in good faith to cure the default.
(b) Upon the occurrence of a default by either party under this
Agreement, a non-defaulting party may pursue any and all remedies available
under applicable law and any one or more of the remedies provided in this
Agreement, separately or concurrently or in any combination, without further
notice or demand whatsoever; provided, however, that, except as set forth
Sections 13.02, 13.03 or 13.04, a non-defaulting party may terminate this
Agreement only with respect to a particular Site in accordance with Section
13.05 and only in accordance with Sections 13.02, 13.03 and 13.04.
13.02 Termination of the Agreement by XxxxXxxxx. (a) Notwithstanding
anything to the contrary contained herein, (i) if Vendor breaches any of its
obligations under this Agreement and such breach continues for at least thirty
(30) days with respect to at least twenty (20) Sites not yet Completed,
including without limitation, obligations set forth in Articles 5 and 8, and as
a result of such breach, BellSouth has the right to liquidated damages pursuant
to Section 11.01, or (ii) if there is any change that results in Vendor's Change
of Control and BellSouth exercises its right to purchase all the Sites in the
Project or all the capital stock of the Bankruptcy Remote Entity pursuant to
Section 25 of the Master Lease, then BellSouth may, in its sole discretion,
terminate this Agreement with respect to all Sites on ten (10) days' written
notice to Vendor.
(b) If BellSouth elects, at any time during the term of this
Agreement, in its sole discretion to terminate this Agreement pursuant to
Section 13.02(a), Vendor shall (i) cease searching for attempting to acquire any
additional Sites, and (ii) at BellSouth's option as to any Site which has not
been Completed, either (x) continue performing its obligations hereunder as to
such Site until the Completion of such Site, including, without limitation, any
Site with respect of which Vendor is in breach, or (y) cease performing Work on
such Site. If any Site is terminated pursuant to clause (ii)(y) above, BellSouth
shall have no further obligation in respect of such Site.
(c) The termination of this Agreement by BellSouth pursuant to
Section 13.02 shall not relieve Vendor or BellSouth of any of its duties and
obligations theretofore accrued under this Agreement prior to the effective date
of such termination.
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May only be used for Authorized BellSouth Business Purposes and only by
Authorized Individuals.
13.03 Termination of the Agreement by XxxxXxxxx in Respect of Vendor's
Bankruptcy. BellSouth may terminate this Agreement with respect to all Sites for
cause in the event of occurrence of any of the following, after which Vendor
shall continue performing its duties and obligations hereunder accrued prior to
the effective date of such termination, but shall cease searching for or
attempting to acquire any additional cell sites:
(a) A trustee or receiver is appointed to take possession or control
of all or substantially all of Vendor's assets, and such receiver or trustee
shall fail, within sixty (60) days of appointment, to affirm or assume this
Agreement, to provide adequate assurance as to its ability to perform all of the
terms and conditions of this Agreement as a receiver or trustee of Vendor, to
cure all other events of default, and to pay all damages incurred by XxxxXxxxx
as a result of all events of default.
(b) Vendor shall commence any voluntary proceeding under present or
future Federal bankruptcy laws or under any other bankruptcy, insolvency or
other laws respecting debtor's rights.
(c) An "order for relief" or other judgment or decree by any court
of competent jurisdiction is entered against Vendor in any involuntary
proceeding against Vendor under present or future Federal bankruptcy laws or
under any other bankruptcy, insolvency or other laws respecting debtor's rights,
or any such involuntary proceeding shall be commenced against Vendor and shall
continue for a period of forty-five (45) days after commencement without
dismissal.
13.04 Termination of Agreement by Vendor in Respect of BellSouth's
Bankruptcy. Vendor may terminate this Agreement with respect to all Sites for
cause in the event of occurrence of any of the following, after which after
which Vendor shall continue performing its duties and obligations hereunder
accrued prior to the effective date of such termination, but shall cease
searching for or attempting to acquire any additional cell sites:
(a) A trustee or receiver is appointed to take possession or control
of all or substantially all of BellSouth's assets, and such receiver or trustee
shall fail, within sixty (60) days of appointment, to affirm or assume this
Agreement, to provide adequate assurance as to its ability to perform all of the
terms and conditions of this Agreement as a receiver or trustee of BellSouth, to
cure all other events of default, and to pay all damages incurred by Vendor as a
result of all events of default.
(b) BellSouth shall commence any voluntary proceeding under present
or future Federal bankruptcy laws or under any other bankruptcy, insolvency or
other laws respecting debtor's rights.
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May only be used for Authorized BellSouth Business Purposes and only by
Authorized Individuals.
(c) An "order for relief" or other judgment or decree by any court
of competent jurisdiction is entered against BellSouth in any involuntary
proceeding against BellSouth under present or future Federal bankruptcy laws or
under any other bankruptcy, insolvency or other laws respecting debtor's rights,
or any such involuntary proceeding shall be commenced against BellSouth and
shall continue for a period of forty-five (45) days after commencement without
dismissal.
13.05 Termination as to Specific Sites by Either Party.
(a) As set forth below, a party may terminate this Agreement with
respect to a Site which has not been Completed in the event of occurrence of any
of the following by the other party, after which termination neither Vendor nor
BellSouth shall have any further obligations to each other with respect to such
Site only, but Vendor shall continue performing its other obligations hereunder
(except as such obligations relate to such terminated Sites), including without
limitation continuing to (i) perform the Work as to any other Sites, until the
Completion of such Sites and (ii) searching for or attempting to acquire any
additional cell sites:
(i) Upon the occurrence of a default by a party under this
Agreement arising in respect of a particular Site, where such default is
not cured within the applicable grace period.
(ii) If such Site, in its entirety, is taken by the exercise
of the power of eminent domain by a Governmental Authority or a Person
entitled to exercise such power or benefiting therefrom or such part of
the Site is taken by the power of eminent domain so as to render the Tower
unusable for its Intended Use, as contemplated by this Agreement.
(iii) If, pursuant to Section 4.02(e), if BellSouth elects to
construct, or cause Vendor to construct, Improvements on an alternative
Site.
(b) If BellSouth terminates this Agreement pursuant to Section
13.05(a)(i), Vendor shall promptly:
(i) Upon request by XxxxXxxxx, deliver to BellSouth or such
other Person as BellSouth may designate, all materials, supplies,
equipment, keys, contracts and documents, all books of account and records
maintained pursuant to this Agreement pertaining to the applicable Site.
(ii) Upon BellSouth's request, assign all existing contracts
relating to the specific Site to BellSouth or such other Person as
BellSouth shall designate and BellSouth shall reimburse Vendor for
reasonable and necessary out-of-pocket costs incurred by Vendor in
connection with the construction of such Site, within thirty (30) days
after receipt of written statement from Vendor
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May only be used for Authorized BellSouth Business Purposes and only by
Authorized Individuals.
specifying in reasonable detail the nature and necessity of each such
cost; provided that no such costs shall exceed ordinary and customary
costs incurred by similarly situated vendors in the industry for similar
construction services. Vendor hereby grants BellSouth an irrevocable power
of attorney, exercisable from and after the termination of this Agreement
pursuant to this Section 13.05, at BellSouth's option to either (A) effect
the transfer of the interest of the Bankruptcy Remote Entity under each
Ground Lease to BellSouth or its designee, and assignment of Vendor's
rights under all such contracts to BellSouth or its designee or (B) effect
the transfer by Vendor of all rights, interest and title in the applicable
Site to BellSouth or its designee. The irrevocable power of attorney
granted hereby is coupled with interest.
(iii) Furnish all such information, take all such other
action, and cooperate with BellSouth as BellSouth shall reasonably require
in order to effectuate an orderly and systematic termination of
Development Services and Vendor's other, duties, obligations and
activities hereunder.
(c) The termination of this Agreement by either party by reason of a
default shall not relieve the other party of any of its duties and obligations
theretofore accrued under this Agreement prior to the effective date of such
termination.
ARTICLE 14
FORCE MAJEURE
14.01 Force Majeure. An event of "Force Majeure" shall mean the following
events or circumstances, to the extent that they delay the Completion of any
Site or the performance of Vendor of its other duties and obligations under this
Agreement in respect of a Site.
(a) condemnation or other exercise of the power of eminent domain;
(b) changes in Governmental Requirements applicable to the
construction of the Towers and Improvements and Completion of the Site effective
after the Effective Date, and the orders of any Governmental Authority having
jurisdiction over a party;
(c) acts of God, including, without limitation, tornadoes,
hurricanes, floods, sinkholes, landslides, earthquakes, epidemics, quarantine
and pestilence;
(d) fire and other casualties, such as explosions and accidents; and
(e) acts of a public enemy, acts of war, terrorism, effects of
nuclear radiation, blockades, insurrections, riots, civil disturbances or
national or international calamities.
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May only be used for Authorized BellSouth Business Purposes and only by
Authorized Individuals.
14.02 Effect of Force Majeure. Vendor shall be entitled to an adjustment
of the Scheduled Commencement Date, the Site Schedule, the Project Schedule and
the Project Completion Date, in each case as its applies to a Site affected by
Force Majeure, but only for the number of days due to such causes and only to
the extent that such occurrences actually delay the Completion of such Site. The
extent of any such adjustment is subject to the prior written approval of
BellSouth, not to be unreasonably withheld or delayed. Under no circumstances
shall a Force Majeure event effect any extension of the Project Completion Date,
except as required for any Site whose Site Schedule is adjusted.
ARTICLE 15
FIRE OR OTHER CASUALTY; CONDEMNATION
15.01 Obligation to Reconstruct; Use of Insurance Proceeds. In the event
of destruction or damage to any Tower or other Improvements by fire or other
casualty prior to Completion, Vendor shall restore, reconstruct and repair any
such destruction or damage by fire or other casualty such that the Tower and the
Improvements shall be in accordance with the Specifications. Vendor shall use
all available insurance proceeds for restoration, reconstruction or repair, as
required by this Agreement, and BellSouth shall consent to such use of insurance
proceeds as required. The parties agree to adjust the Site Schedule, the Project
Schedule, Scheduled Commencement Date and the Project Completion Date, in each
case only with respect to the affected Site, in order to extend the timetable
for the Completion of Work with respect to any destroyed or damaged Towers or
Improvements.
15.02 Condemnation of the Tower or Site; Application of Compensation. In
the event that a Tower or a Site, or both, or any part thereof, is damaged or
taken by the exercise of the power of eminent domain at any time prior to the
Completion Date, the compensation awarded to and received by Vendor shall be
applied to restoration, reconstruction and repair of the Tower, provided, that
the Tower can (i) be restored, reconstructed or repaired, and (ii) be
commercially feasible for its Intended Use as contemplated by this Agreement
after the taking. The parties agree to adjust the Site Schedule, the Project
Schedule, Scheduled Commencement Date and the Project Completion Date, in each
case only with respect to the affected Site, in order to extend the timetable
for the Completion of Work with respect to the taken Tower or Site.
ARTICLE 16
MISCELLANEOUS
16.01 Notices. Whenever any notice, demand, request, advice or other
communication is required or permitted under this Agreement, such notice, demand
or request shall be in writing and shall be sent by registered or certified
mail, postage prepaid, return receipt requested, or be sent by nationally
recognized commercial courier for next Business Day delivery so long as such
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May only be used for Authorized BellSouth Business Purposes and only by
Authorized Individuals.
commercial courier requires the recipient to sign a receipt evidencing delivery,
to the addresses set forth below or to such other addresses as are specified by
written notice given in accordance herewith:
BELLSOUTH: BellSouth Personal Communications, Inc.
0000 Xxxxxxxxx Xxxx, X.X., Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: President
Telecopier No.: (000) 000-0000
with a copy to:
BellSouth Personal Communications, Inc.
0000 Xxxxxxxxx Xxxx, X.X., Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: General Counsel
Telecopier No.: (000) 000-0000
VENDOR: SBA Towers, Inc.
SBA, Inc.
Xxx Xxxx Xxxxxx Xxxx, 0xx xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Chief Operating Officer
Telecopier No.: (000) 000-0000
with a copy to;
SBA Towers, Inc.
SBA, Inc.
Xxx Xxxx Xxxxxx Xxxx, 0xx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telecopier No.: (000) 000-0000
All notices, demands, requests, advice or communications given by mailing shall
be deemed given on the date of receipt in the United States Mail; those given by
commercial courier shall be deemed given on the date such notice, demand,
request, advice or communication is delivered to the recipients address set
forth above or to such other address as is specified by written notice given in
accordance herewith. Any notice, demand, request, advice or communication not
received because of changed address or facsimile number of which no notice was
given or because of refusal to accept delivery shall be deemed received by the
party to whom addressed on the date of hand delivery, on the date of facsimile
transmittal, on the first calendar day after deposit with commercial courier, or
on the third calendar day following deposit in the United States Mail, as the
case may be.
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RESTRICTED: Contains Private and/or Proprietary Information.
May only be used for Authorized BellSouth Business Purposes and only by
Authorized Individuals.
16.02 Assignment; Binding Effect. The rights of the parties under this
Agreement are personal to the parties and may not be assigned without the prior
written consent of the other party, except (i) for collateral assignments given
to lenders providing financing and (ii) that BellSouth may assign all or any of
its rights and delegate all or any of its duties hereunder to the Carolinas
Partnership, as to any Sites that are located in the Carolinas Partnership's
service territory, without the prior written consent of Vendor. This Agreement
shall be binding upon and enforceable against, and shall inure to the benefit
of, the parties hereto and their respective legal representatives, successors
and permitted assigns.
16.03 Joint and Several Liability. Each of SBA Towers and SBA acknowledges
and represents to BellSouth that all the obligations of Vendor to perform or
observe fully any and all covenants, agreements or provisions to be performed or
observed pursuant to this Agreement shall be joint and several obligations of
SBA Towers and SBA.
16.04 Authorized Representatives. Any consent, approval, authorization or
other action required or permitted to be given or taken under this Agreement by
BellSouth or Vendor, as the case may be, shall be given or taken by one or more
of the authorized representatives of each, whose names as of the date hereof are
set forth in Annex H, subject to change from time to time by notice given by
BellSouth or Vendor pursuant to Section 16.02 and Annex H. The written
statements and representations of any authorized representative of BellSouth or
Vendor shall be binding upon the party for whom such person is an authorized
representative, and the other party hereto shall have no obligation or duty
whatsoever to inquire into the authority of any such representative to take any
action which he proposes to take.
16.05 Headings. The use of headings, captions and numbers in this
Agreement is solely for the convenience of identifying and indexing the various
provisions in this Agreement and shall in no event be considered otherwise in
construing or interpreting any provision in this Agreement.
16.06 Annexes and Exhibits. Each and every annex and exhibit referred to
or otherwise mentioned in this Agreement is attached to this Agreement and is
and shall be construed to be made a part of this Agreement by such reference or
other mention at each point at which such reference or other mention occurs, in
the same manner and with the same effect as if each annex and exhibit were set
forth in full and at length every time it is referred to or otherwise mentioned.
16.08 Publicity. Neither party will advertise or publish any information
related to this Agreement without the prior written approval of the other party.
16.09 Severability. If any term, covenant, condition or provision of this
Agreement, or the application thereof to any person or circumstance, shall be
held to be invalid or unenforceable, then in each such event the remainder of
this Agreement or the application of
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May only be used for Authorized BellSouth Business Purposes and only by
Authorized Individuals.
such term, covenant, condition or provision to any other person or any other
circumstance (other than those as to which it shall be invalid or unenforceable)
shall not be thereby affected, and each term, covenant, condition and provision
hereof shall remain valid and enforceable to the fullest extent permitted by
law.
16.10 Waiver. Failure by either party to complain of any action,
non-action or default of the other party shall not constitute a waiver of any
aggrieved party's rights hereunder. Waiver by either party of any right arising
from any default of the other party shall not constitute a waiver of any other
right arising from a subsequent default of the same obligation or for any other
default, past, present or future.
16.11 Rights Cumulative. All rights, remedies, powers and privileges
conferred under this Agreement on the parties shall be cumulative of and in
addition to, but not restrictive of or in lieu of, those conferred by law or
equity.
16.12 Time of Essence; Prompt Responses. Time is of the essence of this
Agreement. Anywhere a day certain is stated for payment or for performance of
any obligation, the day certain so stated enters into and becomes a part of the
consideration for this Agreement. The parties recognize and agree that the time
limits and time periods provided herein are of the essence of this Agreement.
The parties mutually agree to exercise their mutual and separate good faith,
reasonable efforts to consider and respond promptly and as expeditiously as is
reasonably possible notwithstanding any time period provided in this Agreement.
16.13 Applicable Law. This Agreement shall be governed by, construed under
and interpreted and enforced in accordance with the laws of the State of
Georgia, without regard to its conflicts of laws provisions.
16.14 Dispute Resolution Procedures. (a) Any dispute between the parties
relating to any problem with respect to a specific Site, including without
limitation, any dispute of the type more particularly described in Annex O,
shall be resolved in accordance with the procedures specified in Annex 0.
(b) Any dispute between the parties other than dispute referred to
in Section 16.14(a), including without limitation, any dispute with respect to
the interpretation of any provision of this Agreement or with respect to the
performance of either party, shall be resolved as specified below:
(i) Upon the written request of either party, each of the
parties will appoint a designated representative who does not devote
substantially all of his or her time to performance under this agreement,
whose task it will be to meet with the purpose of endeavoring to resolve
such dispute;
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Authorized Individuals.
(ii) The designated representatives shall meet as often as
necessary during a thirty (30) day period (or such other time as the
parties may agree) to gather and furnish to the other all information with
respect to the matter in issue which is appropriate and germane to its
resolution;
(iii) Such representatives shall discuss the problem and
negotiate in good faith in an effort to resolve the dispute without the
necessity of any formal proceeding relating thereto;
(iv) The specific format for such discussions will be left
to the discretion of the designated representatives, but may include the
preparation of agreed upon statements of fact or written statements of
position furnished to the other party;
(v) If the designated representatives cannot resolve the
dispute, then the dispute shall be referred to the presidents of each
party, for their review and resolution. If the dispute cannot be resolved
by such officers, then the parties may initiate formal proceedings;
however, formal proceedings for the resolution of any such dispute may not
be commenced until the earlier of:
(A) The designated representatives concluding in good
faith that amicable resolution through continued negotiation of the
matter in issue does not appear likely; or
(B) Thirty (30) days after the initial request to
negotiate such dispute (unless preliminary or temporary relief of an
emergency nature is sought by one of the parties); or
(C) Thirty (30) days before the statute of limitations
governing any cause of action relating to such dispute would expire.
(c) BellSouth and Vendor agree that any litigation arising out of
any dispute not resolved pursuant to Section 16.14(b) shall be litigated in any
state or Federal court located in Xxxxxx County, Georgia, and BellSouth and
Vendor hereby expressly consent to the jurisdiction of any such courts and to
the venue therein.
16.15 Entire Agreement. This Agreement and the letter agreement of even
date herewith between BellSouth and Vendor contain the entire agreement of
BellSouth and Vendor with respect to the engagement of Vendor as the Vendor for
the Project, and all representations, warranties, inducements, promises or
agreements, oral or otherwise, between the parties not embodied in this
Agreement shall be of no force or effect.
16.16 Modifications. This Agreement shall not be modified or amended in
any respect except by a written agreement executed by both parties.
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May only be used for Authorized BellSouth Business Purposes and only by
Authorized Individuals.
16.17 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, and all of such
counterparts together shall constitute one and the same instrument.
16.18 No Brokers. XxxxXxxxx and Vendor hereby represent, agree and
acknowledge that no real estate broker or other person is entitled to claim or
to be paid a commission as a result of the execution and delivery of this
Agreement, including any of the Exhibits, or any proposed improvement, use,
disposition or lease of any or all of the Site.
[Remainder of page intentionally left blank]
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Authorized Individuals.
IN WITNESS WHEREOF, XxxxXxxxx, SBA Towers and SBA have caused their
respective duly authorized representatives to execute, seal and deliver this
Agreement, all as of the day and year first above written.
BELLSOUTH:
BELLSOUTH PERSONAL
COMMUNICATIONS, INC.
By:
---------------------------- ----------------------------
Witness Name:
-----------------------
Title:
----------------------
----------------------------
Witness Attest:
------------------------
Name:
-----------------------
Title:
----------------------
VENDOR:
SBA TOWERS, INC.
/s/ [ILLEGIBLE] By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------- ----------------------------
Witness Name: Xxxxxx X. Xxxxxxxxx
-----------------------
Title: President
----------------------
/s/ [ILLEGIBLE]
----------------------------
Witness Attest: /s/ Xxxxxxx X.Xxxxxx
------------------------
Name: Xxxxxxx X.Xxxxxx
-----------------------
Title: Secretary
----------------------
SBA, INC.
/s/ [ILLEGIBLE] By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------- ----------------------------
Witness Name: Xxxxxx X. Xxxxxxxxx
-----------------------
Title: President
----------------------
/s/ [ILLEGIBLE]
----------------------------
Witness Attest: /s/ Xxxxxxx X.Xxxxxx
------------------------
Name: Xxxxxxx X.Xxxxxx
-----------------------
Title: Asst. Secretary
----------------------
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IN WITNESS WHEREOF, XxxxXxxxx, and Vendor have caused their respective
duly authorized representatives to execute, seal and deliver this Agreement, all
as of the day and year first above written.
BELLSOUTH:
BELLSOUTH PERSONAL
COMMUNICATIONS, INC.
/s/ Xxxxxxxxx Xxxxxx By: /s/ [ILLEGIBLE]
---------------------------- ----------------------------
Witness Name: [ILLEGIBLE]
-----------------------
Title: President
----------------------
/s/ [ILLEGIBLE]
----------------------------
Witness Attest: /s/ [ILLEGIBLE]
------------------------
Name: [ILLEGIBLE]
-----------------------
Title: Asst. Secretary
----------------------
(CORPORATE SEAL)
VENDOR:
SBA, INC./ SBA TOWERS, INC.
By:
----------------------------
Name:
---------------------------- -----------------------
Witness Title:
----------------------
Attest:
---------------------------- -------------------------
Witness Name:
-----------------------
Title:
----------------------
(CORPORATE SEAL)
