EXHIBIT 10.13
SITE ACQUISITION, ZONING AND
A&E SUPERVISION AGREEMENT
THE SITE ACQUISITION, ZONING AND CONSTRUCTION SUPERVISION AGREEMENT
(the "Agreement") is dated this ___ day of __________, 1997 by and between
Triton PCS, Inc., or its nominee (the "Company"), located at Xxxxx 000, 000
Xxxxxxxxxx Xxxxx, Xxxxxxx, XX 00000, and Gearon & Co., Inc. (the "Contractor"),
located at 0000 Xxx Xxxxxxxx XX, Xxxxx 000, Xxxxxxx, XX 00000. The Company
desires to engage Contractor to perform the "Services," as defined below, and
Contractor desires to provide the Services. Therefore, the parties agree as
follows:
1. SERVICES. The Company hereby engages Contractor as an independent contractor
to provide the following services (hereafter the "Services") with respect to
Company's establishment of a Personal Communications Services network for
Company's South Carolina and Georgia trading areas ("Trading Areas"); Contractor
shall identify up to three candidate sites per search ring. Company shall select
one primary, and one secondary candidate site per search ring for which
Contractor shall secure a leasehold or other ownership interest in the primary
and the secondary if so requested by Company. In addition, Contractor shall
manage the services provided by surveyors and other third party contractors as
may be required to carry out this component of services. At its sole discretion,
Company may reduce the required three candidate sites per search ring to one or
two sites, as well as require two leasehold interests to be secured. The
Services are further set forth in Attachment A. Company's payment obligations
for the Services are set forth in Attachment B.
2. FACILITIES. Company shall provide, at its cost and expense, space in
Company's Charleston, S.C. office facilities as more fully described on
Attachment C for Contractor's personnel performing the Services throughout the
term of this Agreement. The office facilities shall include the use of copiers,
fax, machines, printers, office supplies and local phone service, but not
computers or peripherals. Company will provide, as reasonably needed, clerical
and other administrative support for the project office, but not for
Contractor's site acquisition or zoning specific tasks. Contractor shall be
responsible for excluded expenses as set forth in Attachment B.
3. RELATIONSHIP BETWEEN THE PARTIES. Contractor will be acting as an
independent contractor to the Company, and nothing in this Agreement will be
deemed to create a relationship of employer-employee, principal-agent, partner
or joint venture between Contractor and the Company. Neither party has any
authority to bind the other to any contract or agreement without the other's
written permission. Contractor shall operate an independent business consistent
with both companies' businesses and agrees to be responsible for all of
Contractor's federal and state local taxes, withholding, social security,
insurance, and other benefits.
4. COMPANY DELIVERABLES. Company shall deliver to Contractor not less than 50
"Search Rings" for PCS sites in accordance with Exhibit A-3(3) no later than 30
days after the start of this Agreement, the remaining 300 "Search Rings" in
accordance with Exhibit A-3(3) will be delivered no later than 120 days after
the start of this Agreement.
5. CHANGES TO CONTRACT SCOPE. Company may make changes at any time to the
general scope of the Services contained herein only by means of a written Change
Order. Any Change Order that exceeds the scope of Services outlined in
Attachment A and which requires additional services on the part of the
Contractor shall result in an adjustment of the price to be paid to Contractor.
Contractor shall, upon receipt of a written Change Order request from Company,
provide Company with an estimate of additional charges required to complete the
Change Order. Prior to commencement of additional work, the Change Order shall
be approved by a Company representative. Any changes for additional work
commenced by Contractor without a written Change Order may be denied by the
Company at its sole discretion.
6. CONTRACTOR DELIVERABLES; REPORTING; APPROVAL BY COMPANY. Within 21 days
after execution of this Agreement, Company and Contractor shall agree upon and
prepare a detailed schedule for the completion of Services on a site-by-site
basis, which schedule shall become Attachment C to this Agreement. The schedule
shall contain, at a minimum, milestone dates for the completion by Contractor of
Site Acquisition, Site Zoning, and Site Construction Services (each as defined
in Exhibit A). This Agreement shall automatically terminate if the parties are
unable, after good faith negotiations, to agree to a schedule within the
allotted 21 days. Notwithstanding this, Contractor agrees to proceed working
under this Agreement, including deploying necessary personnel, immediately after
execution of this Agreement as set forth in Attachment D. Following approval of
this schedule by the Company, the Contractor shall thereafter for the term of
this Agreement provide the Company with not less than a written weekly report
outlining the progress made to attain the schedule previously submitted. Any
change in schedule which results in a time extension of one week or greater on
an individual site basis shall be clearly noted and the reasons therefore shall
be explained in writing. Company may, at its sole discretion, agree to a time
extension from the detained schedule originally provided. Contractor shall
attend all project meetings reasonably requested by Company.
7. SITE LEASES. Attached hereto as Attachment E is the form of lease acceptable
to Company which may be used by Contractor for site acquisitions without the
need for prior approval by Company. Contractor shall provide Company with a red-
lined lease version showing any changes made to the original in Attachment E.
Although Contractor is authorized to negotiate on behalf of Company for lease to
a site, Contractor shall have no authority to bind Company to any contractual
obligation, including any lease or option. Contractor shall inform all
perspective lessors that Contractor has no authority to bind Company and that
all proposed leases and options are subject to review, approval and execution by
an officer of Company.
8. TERM. The Agreement shall have an initial term of fifteen (15) months
commencing on the date hereof, unless otherwise terminated in accordance with
Section 20 below. This Agreement shall be renewed automatically for additional
one year terms unless one party notifies the other party of its intent to cancel
the Agreement at the end of the then current term upon 60 days' prior written
notice.
9. CONTRACTOR'S REPRESENTATION, WARRANTIES, AND COVENANTS.
A. Contractor's execution of this Agreement and Contractor's performance of
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Contractor's obligations hereunder does not and will not violate any agreement
between Contractor and any third party, or any obligation of Contractor to any
third party, including without limitation any non-compete agreement or
obligation.
B. Contractor warrants that Contractor has complied with all applicable
federal, state and local registration and licensing requirements to enable
Contractor to act as an independent contractor under the terms of this
Agreement.
C. Contractor has the skill necessary to perform the services required
pursuant to this Agreement, and all Services provided by Contractor shall be
performed in a professional manner and shall be of a high grade, nature, and
quality, commensurate with that which is customary in the industry.
D. Each of the employees and subcontractors utilized by Contractor for the
Services hereunder shall be of the highest professional skill and quality. At
any time, with prior notice Company has the right to require the removal of any
employee of subcontractor utilized or supervised by Contractor at Company's sole
discretion.
E. Contractor shall pay all applicable local, state and federal
withholding and insurance amounts when due and shall comply with all applicable
minimum wage requirements with respect to its employees.
F. Contractor will during the term of this Agreement maintain insurance
policies sufficient to protect Contractor's business against all applicable
risks. Without limiting the scope of the foregoing, Contractor shall maintain
Commercial General Liability coverage in an amount of not less than $1,000,000
per occurrence for bodily injury or death, personal injury and property damage
liability; and for all motor vehicles used by employees during the course of
this Agreement, liability and property damage insurance in the amount of
$1,000,000. Contractor agrees to name the Company as additional insured under
the above coverages. Contractor will secure and maintain all required insurance
for its employees during the term of this Agreement. All subcontractors or
other agents hired by Contractor under the terms of this Agreement must adhere
to the conditions contained in this paragraph, which shall be paid by
subcontractor and Contractor shall provide Company with a copy of said
insurance. Contractor shall provide Company with evidence of such insurance
prior to commencement of work under this contract, and as otherwise reasonable
requested by Company.
G. Contractor shall, while on Company property or performing any of the
Services hereunder, comply with all applicable local, state and federal laws and
regulations including without limitation laws and regulations under the
Occupational Safety and Health Act ("OSHA").
10. BOOKKEEPING. Contractor shall maintain a separate set of books or records
that reflect all items of income and expenses, which may become the obligations
of Company, related to Services provided under this Agreement. Company shall be
provided upon reasonable written request copies of such books and records at no
additional cost.
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11. CONFIDENTIALITY. Contractor acknowledges that Contractor may be given
access to certain confidential or secret information and material relating to or
owned by the Company, including but not limited to the Company's proposed
acquisitions, proposed FCC filings (including cellular and/or PCS filings),
financial information, customer lists, files and other information regarding
individual customers, company's business or Company's organization and
operations, solely in order that Contractor may best perform Contractor's duties
hereunder. Such information and material shall be the sole and exclusive
property of the Company, and Contractor agrees that during the term of this
Agreement and at all times thereafter Contractor will not disclose such
confidential or secret information or material to any governmental agency
(except as required by law), person, entity, firm or corporation without the
explicit prior written consent of the Company. Contractor agrees to return to
Company promptly upon termination of this Agreement all correspondence, letters,
documents or other tangible things or copies thereof (whether stored in hard
copy, in electromagnetic media, or in any other form) which mention or contain
said confidential or secret information or material.
All information and materials or product provided, generated or
produced by Contractor under this Agreement shall be and remain the sole and
exclusive property of Company and shall be held by Contractor as a trustee for
the benefit of the Company.
12. NON-COMPETITION. Until the expiration or early termination of this
Agreement, the Contractor agrees that it will provide written notice to the
Company if it intends to perform services which are the same or comparable to
the Services, for any entity which offers paging services, Enhanced Specialized
Mobile Radio Services ("ESMR"), cellular services or Personal Communication
Services ("PCS") ("Competitor"), in any area which is within the Trading Area.
In addition, the Contractor will provide five (5)days written notice of any
situation where the Contractor has been engaged to perform such services for a
Competitor with respect to a site which is located within one mile of the target
of a Search Ring. Such notices shall reasonably apprise the Company of the
nature and scope of such services. The Contractor agrees that, if it provides
any of such services to a Competitor, it will not use any of the same field
personnel to provide services to both the Company and the Competitor and that it
will not, directly or indirectly, permit any information regarding the Company,
the PCS System or the Services to be communicated to any of its field personnel
who are providing services to a Competitor. Until the expiration or early
termination of this Agreement, the Contractor agrees that it will not accept
assignments from, or conduct such services for, any Competitor, which would
conflict with or impair the unbiased performance of its duties hereunder.
13. MODIFICATIONS. This Agreement may be modified only in writing executed by
both parties.
14. ASSIGNMENT. Contractor acknowledges that the services to be rendered by
Contractor are unique and personal. Accordingly, Contractor may not assign any
of Contractor's rights, including the right to receive payments, or delegate any
of Contractor's duties or obligations under this Agreement without the prior
written consent of the Company.
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The Company may assign its right hereunder to (1) any corporation
resulting from any merger, consolidation or other reorganization to which the
Company is a party, (2) any corporation, partnership, association, or other
person to which the Company may transfer all or substantially all of the assets
or business of the Company existing at such time, or (3) any majority-owned
subsidiary of the Company. The Company may otherwise assign its rights to any
other entity with the written consent of Contractor, such consent not to be
unreasonably withheld or delayed. This Agreement shall inure to the benefit of
and shall be binding upon the successors and assigns of the parties.
15. NOTICES. All notices or other written communications required under this
Agreement shall be given personally or by registered mail to the parties at the
following addresses:
To Company: Triton Communications L.L.C.
Xxxxx 000
000 Xxxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: President
Fax: (000) 000-0000
and
Triton Communications L.L.C.
0 Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx
To Contractor: Gearon & Co. Inc.
0000 Xxx Xxxxxxxx, X.X.
Xxxxx 000
Xxxxxxx, XX 00000
Fax: 000-000-0000
16. DISPUTE RESOLUTION; GOVERNING LAW. This Agreement shall be governed by and
construed according to the laws of the Commonwealth of Pennsylvania. The parties
hereby submit to the jurisdiction of any state court sitting in Pennsylvania, or
any federal district court for the district in which said county is located,
without regard to the conflict of laws or choice of law principles.
17. REMEDIES. The parties agree that damages may be inadequate to compensate
for the unique losses to be suffered in the event of a breach hereof, and that
the damaged party will be entitled, in addition to any other remedy it may have
under this Agreement or at law, to seek and obtain injunctive relief and other
equitable relief, including specific performance of the terms of this Agreement,
without the necessity of posting bond.
18. INDEMNITY. Each party agrees to indemnify, defend and hold the other
harmless from
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and against any and all claims, damages, losses and expenses, including but not
limited to reasonable attorneys' fees and disbursements, arising out of or
resulting from any claim, action or other proceeding (including without
limitation any proceeding by any of the indemnitor's employees, agents or
contractors) that is based upon the indemnitor's breach of this Agreement or any
negligent act or omission or willful misconduct of the indemnitor.
19. ATTORNEYS' FEES. If any legal action or PROCEEDING is brought to enforce
this Agreement, the substantially prevailing party shall be entitled to recover
reasonable attorneys' fees and other costs incurred in that action or proceeding
(including, without limitation, expert witness fees), in addition to any other
relief to which the prevailing party may be entitled.
20. TERMINATION. In addition to Company's right to terminate this Agreement in
accordance with Section 8, this Agreement may be terminated:
A. By Company or Contractor, immediately upon written notice of
termination, in the event of a material breach of this Agreement by the other
party (including, without limitation, the failure to meet any scheduling
deadline and providing services reasonably satisfactory to Company).
B. By Company or Contractor, immediately upon written notice of
termination to the other party, in the event the other party shall: (i) become
insolvent; (ii) make an assignment for the benefit of creditors; (iii) file a
voluntary bankruptcy petition; (iv) acquiesce to any involuntary bankruptcy
petition; (v) be adjudicated bankrupt; or (vi) cease to do business;
C. Upon termination of this Agreement, the parties hereto shall, within
thirty (30) days, return all of the other party's information in written,
graphic or tangible form relating to this Agreement, including but not limited
to all Confidential Information and any promotional literature which is in their
respective possession. Notwithstanding the foregoing, the Company shall be
entitled to retain any and all work product prepared or assembled by Contractor
prior to such termination.
D. After receipt of such written notice of termination but prior to the
effective date of such termination, Contractor shall continue to perform
services required hereunder unless notified by Company to discontinue service.
Contractor will receive per site fees for any Milestone Service which has been
completed prior to the date of discontinuance and time and materials for
Milestone Services in process since the last completed Milestone in accordance
with the rates set forth on Attachment B. Notwithstanding the foregoing,
Contractor will not receive more than 50% of the applicable Milestone Rate for
any Milestone Service not completed as of the date of discontinuance.
E. The rights and obligations set forth in Sections 10, 11, 16, 17 and 18
shall survive any termination of this Agreement.
21. SEVERABILITY. In the event any one or more of the provisions contained in
this Agreement shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such provision shall be deemed severed from this
Agreement, but the remaining provisions of this Agreement
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shall be enforceable to the maximum extent possible, and in substitution for any
provision held to be invalid, illegal or unenforceable, there shall be
substituted a provision of similar import reflecting the original intent of the
parties to the fullest extent permissible under law.
22. SELF-DEALING. Contractor will not, nor will any of its affiliates, receive
any compensation from any third party, other than as set forth in Attachment B
as a result of, arising from or relating to the Services. If any such
compensation would have otherwise been payable to Contractor, Contractor will
transfer the benefit of such compensation to the Company.
23. EFFECTIVE DATE. Notwithstanding anything herein to the contrary, Company
shall have the right to terminate this Agreement upon written notice to
Contractor if Company has not acquired the PCS licenses from AT&T for the
Trading Areas.
Triton PCS, Inc.
By:
-------------------------------
Xxxxxx X. Xxxxxxx, President
Gearon & Co., Inc.
By:
-------------------------------
J. Xxxxxxx Xxxxxx, Xx.
President
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ATTACHMENT A
------------
SCOPE OF WORK
SERVICES: To enable Company to develop, deploy an deliver its PCS network,
Contractor has been engaged to perform the various services as more specifically
described in the Attachments to this Attachment A ("Services"). To enable
Company to develop, deploy and deliver its PCS network, Contractor has been
engaged to perform the various services as more specifically described in the
Attachments to this Attachment A ("Services").
Work Item Attachment
---------------------------------------------- ----------------
Prezoning A-1
Pre-Design X-0
Xxxx Xxxxxxxxx X-0
Xxxxx Xxx/XXXX Environmental A-4
Screening
Site Acquisition A-5
Site Survey A-6
Zoning X-0
Xxxxxxxx Xxxxxx X-0
Project Reporting A-9
Geotechnical Report A-11
FAA Survey A-12
Construction Management A-12
Project Management A-13
DEFINITIONS: For purposes of this Agreement, the following words will have the
following meanings:
"Deliverables" means any items or work product arising from the performance of
Contractor's Services under this Agreement and delivered to Company, including
letters of intent, leases, purchase agreements, zoning authorizations, building
permits, soil, environmental, title and site reports and studies, drawings,
status reports and similar data, as are to be provided by Contractor under this
Agreement.
"PCS" Equipment means Company's towers, antennas and related equipment necessary
to deploy and deliver PCS from Sites in the MTA/BTA covered by this Agreement.
"RF" means Wireless Facilities, Inc.
"Site Acquisition Milestone" means completing to satisfaction of Company all
Phase One/NEPA Environmental Screening and Site Acquisition Services described
in Attachments A-4 through A-5.
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"Site Selection Milestone" means completing to the satisfaction of the Company
the pre-zoning, pre-design and site selection services described in Attachments
A-1 through A-3.
"Site-Zoning Milestone" means completing to satisfaction of Company all Site
Survey and Zoning services described in Attachments A-6 and A-7.
"Site Construction Milestone" means completing to satisfaction of Company all
Building Permit, Project Reporting, Geotechnical Reports, Construction
Management and Project Management services described in Attachments A-8 and X-
00.
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ATTACHMENT A-1
--------------
PRE-ZONING
----------
1. Contractor will work with Company to develop zoning classifications to be
utilized in this phase of the project.
2. Contractor will identify, within the BTA coverage area as defined by
Company, all zoning jurisdictions within the BTA. Contractor will obtain
zoning maps and regulations for each jurisdiction, identifying all
restrictions, including, but not limited, to height restrictions, setback
requirements, fence height restrictions, tower fall zones, and other
restrictions. Contractor will obtain the names and telephone numbers of
zoning and building permit contact persons.
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ATTACHMENT A-2
--------------
PRE-DESIGN
1. Contractor will identify and catalog all potential sites available to
Company from site providers that previously leased spaced to a Contractor
client or expressed an interest in leasing space to Company ("Friendly
Sites").
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ATTACHMENT A-3
--------------
SITE SELECTION
1. RF will issue a search ring based on its preliminary design (such design
will consider Friendly Sites).
2. RF will deliver search rings to Company, which will then issue search rings
to Contractor.
3. Contractor must always give preference to sites available under Company's
existing master lease agreements entered into by Company ("Master Leases").
If Contractor cannot utilize sites under Master Leases, written
documentation must be provided to Company giving justification as to why
sites under Master Leases cannot be used.
4. Contractor will identify up to three (3) potential candidates for each
search ring within 14 days after receipt of the search ring from Company.
Contractor shall have an additional 5 days to identify potential candidates
for additional search rings if Company has delivered more than 20 search
rings to Contractor within a calendar week. If three (3) such candidates are
not available, Contractor will furnish to Company a written explanation of
Contractor's reason(s) why unavailable.
5. Company will approve or reject candidates or re-design a search ring, at
Company's option.
6. Contractor will utilize necessary resources to comply with Company's
established scheduled time lines in accordance with Section 6 of the
Agreement.
7. Contractor will provide search ring reports containing the following minimum
information:
BTA
Site name
Acquisition Agent
GPS coordinates
Site locale
Site address or exact location if address unavailable
4 photos taken from site (photos should be taken for a 360 orientation
for a rooftop site)
4 photos taken of the site
Name of site owner and manager and address (if applicable)
Lessor name and address
Proposed monthly lease rate/purchase price/term
Physical data (overall structure height, height(s) available to mount
antennas, space available for Company's electronic equipment, distance
for coax from
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antennas to equipment, tower manufacturer and type, primary use of
structure, etc.) Additional specifics will be required as needed by
Company.
Presence of transmitters, receivers or antennas visible in the area
including operating frequencies, photographs
Indicate if space available is/has:
clean
phone circuits
ventilation
loading dock
pest infestation
air conditioning
emergency power
moisture/water
24 hr/7 day access
elevator to equipment room
adjacent or nearby man-made or natural obstructions
transmitter shelter area - prepare drawings
describe exact dimensions and locations
electrical service available
map with street level detailed showing site location
additional information to assist with site evaluation
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ATTACHMENT A-4
--------------
PHASE ONE/NEPA ENVIRONMENTAL SCREENING
Within 30 days after Company has approved a primary site candidate for a search
ring:
1. Contractor agrees that within its scope of work shall be included a
comprehensive investigation and completion of NEPA checklist for all actual
or potential federal, state, local or other jurisdictional environmental
requirements, including, but not limited to, the XXXX Title II and Federal
Communications Commission regulations regarding Environmental Assessments
(e.g., FCC Rules on Environmental Impact, 47 C.F.R. 1.11307) referred to as
"Environmental Screening." Company shall oversee and cause to complete,
execute and submit through a subcontractor a fully executed original NEPA
Checklist for each site. The NEPA Checklist shall be in the form acceptable
to Company and shall include, without limitation, whether a proposed site:
. is located in an officially designated wilderness area;
. is located in a designated wilderness preserve;
. may affect threatened or endangered species or their habitats;
. may affect sites listed on the National Register of Historic Places;
. may affect Indian religious sites;
. are located in a flood plain;
. may involve a significant change in surface features;
. whether an antenna tower to be equipped with highly intensity white light
would be located in a residential neighborhood.
Contractor agrees that it shall engage an environmental consultant to
perform a Phase One environmental assessment ("Phase One") in accordance
with Company standards. The results of such assessment shall be delivered to
Company in writing.
2. At Company's option, Contractor will oversee and cause to be performed
activities required to complete the Environmental Screening requirements on
radio frequency emissions to determine whether the proposed facilities are
located where an operator or transmitter would cause human exposure to
levels of radio frequency radiation in excess of the limits specified in
Subsections 1.1310 and 2.1093, 47 C.F.R. (Applications to the FCC for
construction permits, licenses to transmit or renewals thereof, equipment
authorizations or modifications in existing facilities must contain a
statement confirming compliance with the radio frequency limits unless the
facility, operation or transmitter is categorically excluded as discussed in
Subsection 1.1307. Technical information showing the basis for this
statement must be submitted to the FCC upon request.) This particular
Environmental Screening requirement shall be sufficient to uncover the
impact or potential impact of any such jurisdictional requirements,
including, but not limited to, regulatory filings, hearings, approvals,
and/or fees, site sampling, testing, or relocation of the site requirements.
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3. Contractor agrees that the results of any and all Environmental Screening
and Phase One performed by sub-contractor or third party ("Third Party")
shall be timely reported to Company. Contractor acknowledges that the timely
reporting of such information may influence the site acquisition decision,
and Contractor shall pro-actively work in good faith with Company to arrive
at the optimal site acquisition decision in light of such information.
Contractor agrees to seek indemnification for Company from the Third Party
for any costs, including reasonable attorney fees associated with any
environmental remediation, fine or other penalty imposed on Company as the
direct or indirect result of Third Party's failure to detect such impact or
requirement as described in this Attachment A-4. Should Contractor not
obtain this indemnification for Company in the Contractor/Third party
agreement, Contractor agrees to indemnify Company for any costs, including
reasonable attorney fees associated with any environmental remediation, fine
or other penalty imposed on Company as the direct or indirect result of
Third party's failure to detect such impact or requirement as described in
this Attachment A-4.
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ATTACHMENT A-5
--------------
SITE ACQUISITION
Contractor shall coordinate closely all site acquisition work with any
Third Party.
2. If the site is to be acquired by lease, Contractor will be responsible for
securing proper execution by the site owner/landlord of the appropriate form
of lease with respect to each proposed site. Contractor must use best
efforts to use the Company's standard forms of Master Lease Agreement, PCS
Site Agreement or other lease forms to acquire rights to proposed sites and
will use lease agreements provided by an owner/landlord only as a last
resort. Contractor will also use best efforts to use sites available under
negotiated Master Lease Agreements. Contractor will follow all negotiating
guidelines provided by Company and will not submit any proposed agreement
for Company's consideration that is clearly outside of the proposed
guidelines.
3. Due diligence with respect to title of all sites to be acquired by Company
(by lease, purchase or otherwise) shall be performed at the option of the
Company as follows:
a. acquire an ownership and encumbrance report ("O&E Report") from a
nationally known title insurance company satisfactory to Company which
sets forth the same information as required for an ALTA title
insurance policy described below relating to the proposed site (to the
extent ascertainable by the title company);
b. acquire an ALTA title insurance policy on ground leases, insuring that
Company is the owner of the leasehold estate created by the lease
covering the site in question, such policy is to be issued by a
nationally recognized title insurance company acceptable to Company
and to be in such amount and to contain such exceptions to title as
are satisfactory to Company in Company's sole discretion and in this
regard the title insurance requirements to be followed by Contractor
with respect to the insuring of the leasehold shall be substantially
the same as the title insurance requirements set forth in this Scope
of Work for purchase of sites below;
c. perform or coordinate with the Third Party to ensure that all
applicable due diligence tests and studies have been performed prior
to Company executing the lease to determine to Company's reasonable
satisfaction that the proposed site is suitable for Company's intended
use of it, including, but not limited to:
. with respect to ground lease and vacant land sites only, soil
suitability and compaction testing in accordance with Attachments
A-10 and A-11;
. with respect to sites where Company's electronic equipment will be
located on or in existing improvements constructed prior to 1980,
obtain an asbestos survey; and
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. with respect to ground lease sites, switch sites, and vacant land
sites, a Phase I environmental assessment.
d. In addition, the following tasks shall be performed and confirmed in
writing by Contractor or Contractor shall coordinate with a Third
Party to perform and confirm in writing:
. legal access to the site;
. the site will have adequate utility service available to it
consistent with specifications provided by Company to Contractor;
. necessary building permits or other required governmental approvals
relating to the construction and installation of Company's
equipment or other improvements at the site;
. no easements, conditions, restrictions, liens or other matters
exist of record which negatively impact the Company's ability to
use the site for its intended purposes, and that there are no
delinquent taxes or assessments;
. properly zoned for Company's intended use or whether a zoning
change or variance will be necessary;
. receipt in a recordable form of a Memorandum of Lease and any
Subordination and Non-Disturbance Agreements for signature by
applicable parties, substantially in forms provided to the
Contractor by Company;
. that Contractor has obtained detailed construction drawings and
plans and specifications for all improvements to be constructed or
located upon the site;
. obtain resolutions or other appropriate authorizations or consents
pertaining to the due execution and delivery of the lease in
question by the lessor/owner of the site.
4. If the site is to be acquired by purchase, Contractor shall additionally
. Complete all due diligence items to Company's reasonable
satisfaction which are conditions to Company's purchase of a site
as set forth in a purchase agreement (which is to be substantially
in the form provided by Company to Contractor), including, without
limitation, all requirements and conditions pertaining to title
insurance, survey matters, soil testing, environmental compliance,
governmental authorizations and approvals relating to the
development of the site for Company's intended use of its, the
availability of adequate utility service and legal access to the
site, and any other matters permitted by the terms and
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provisions of a purchase agreement to enable Company to reasonably
determine whether the site is suitable for Company's intended use
of it;
. collect from seller of the site for delivery to Company all
documents, surveys, drawings and other information pertaining to
the site which the seller is required to deliver to Company
pursuant to terms of a purchase agreement;
. provide preliminary closing statement figures to Company with
respect to the purchase of the site not less than ten (10) days
prior to the projected closing date; and
. assure that all requirements of the title company with respect to
the issuance of its policy of owner's title insurance are satisfied
prior to the closing date, to the extent feasible, but if Company
completes the purchase of a site with outstanding title
requirements unsatisfied, and Contractor has so advised Company in
writing thereof, then Contractor has no liability or responsibility
to Company with respect to any such unsatisfied requirement.
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ATTACHMENT A-6
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SITE SURVEY
1. Contractor will obtain and deliver to Company an ALTA/ACSM minimum standards
survey with such additional items as may be required by Company; certified
by a licensed surveyor, and site plan/architectural drawings required by
local zoning authorities. (Contractor may subcontract this work locally.)
Survey drawings shall include, without limitation:
a. site name and number;
b. legal description of parcel, access road easement and utility
easement;
c. relationship of site parcel to adjacent property boundaries by
distance and direction;
d. site parcel and adjacent parcels by map and parcel number, by deed
book and page, and by ownership;
e. name, telephone number and address of surveyor and office contact;
f. the location of all matters described in recorded instruments
affecting the site if capable of being shown on a survey;
g. results of flood plain determination;
2. Contractor will secure and deliver to Company any required survey plats,
mylars, exemption plats or other survey documents required along with any
required signatures.
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ATTACHMENT A-7
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ZONING
1. Contractor will prepare and submit all zoning applications and appeals with
required drawings, and other related materials and obtain any required
zoning approval.
2. Contractor will attend all required hearings and represent Company at
Company's request.
3. Contractor will determine needed compliance with any subdivision regulations
for purchased sites.
4. Contractor will involve legal counsel only in zoning situations in which
Company agrees legal representation is warranted.
5. Contractor will staff at Contractor's expense an M.I.S. graphics specialist
and provide the necessary associated equipment to prepare photo simulations.
Photo simulation will be a critical tool in obtaining landlord and zoning
approval.
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ATTACHMENT A-8
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BUILDING PERMIT
Contractor shall apply for, coordinate/track and obtain building permit.
21
ATTACHMENT A-9
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PROJECT REPORTING
1. Contractor will provide Company with weekly reports showing project status.
This status report will be put into a format acceptable to Company. Report
information will be transmitted to Company via electronic means. Each status
report must include all the following items. Next to each task must be
included the date it was completed or the expected date of completion.
a. BTA name
b. Cell name
c. Grid ID
d. Site ID
e. Acquisition received search ring
f. Search area report delivered to RF
g. Site approved by RF, Contractor & Company
h. Draft lease/option delivered to Company
i. Legal review of lease/option complete
j. Lease execution
k. Lease memo recorded
l. Loading study complete
m. Survey and site plan complete
n. Soil borings complete
o. Flood way investigation complete
x. Xxxx and title insurance complete
q. Phase I NEPA checklist complete
r. Zoning approved
s. Building permit obtained
t. Property closed
u. Site released to construction
v. FAA approval
w. Construction started
x. Construction completed
y. Summary report of number of Sites at each above stage by completion
2. Additional items to report may be added to the above list as reasonably
determined necessary by the Company.
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ATTACHMENT A-10
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GEOTECHNICAL REPORT
Contractor through a Third Party will obtain geotechnical report for
applicable land sites. Geotechnical report shall be completed in accordance
with Company standards and laws of any applicable jurisdiction.
23
ATTACHMENT A-11
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FAA SURVEY
FAA Survey to be coordinated and tracked by RF or as otherwise
specified by Company.
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ATTACHMENT A-12
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CONSTRUCTION MANAGEMENT
1. PRE-CONSTRUCTION PLANNING
In support of the pre-construction planning requirements, Contractor
will complete the following activities:
. Conduct construction feasibility assessments with all applicable
contractors to assess construction costs, identify potential problems,
and develop the most efficient design for each of Company's sites.
Coordinate the production and review of all construction drawings to
ensure compliance with Company's specifications and requirements.
. Coordinate and manage new service requests, field surveys and the
installation of power and telephone service to ensure that new utility
service is supplied on time and in compliance with Company's
specifications. Act as a liaison with local building jurisdictions to
ensure that construction permits are expedited and that questions are
answered or additional information is provided as required.
. Qualify and select Construction subcontractors. Develop and deliver
request for quotation packages and systematically evaluate the
responses. Each subcontractor is required to participate in a thorough
qualification process during which Contractor will ensure that each is
fully insured and has obtained all required local, state and federal
licenses and certifications. Review safety programs and records,
references and the financial viability of any subcontractor. Coordinate
subcontractor selection activities with Company.
. At Company's request and additional expense (i) procure materials and
supplies from wireless industry suppliers and manufacturer and (ii)
implement a customized inventory management system, designed to
effectively control material orders and their distribution.
. Develop a Master Construction Plan that includes a detailed schedule for
each of Company's sites. Contractor shall continuously monitor and
update to ensure compliance with project milestones.
2. CONSTRUCTION EXECUTION
In support of construction execution, Contractor will:
. Conduct pre-construction meetings with subcontractors, property managers
and utility service providers to ensure that construction objectives,
property owner
25
concerns and site specific requirements are understood and agreed upon
by all parties involved in the buildout of Company's network.
. Provide on-site supervision of all construction activities to minimize
disruption to property owners, to ensure adherence to construction
specifications and standards, and complete construction in compliance
with Company construction schedule.
3. QUALITY ASSURANCE
As part of its quality assurance services, Contractor will:
. Conduct a thorough quality assurance inspection upon completion of each
site, ensuring that each of Company's punch list items are resolved
within 48 hours.
. Coordinate and attend site inspections with all local building
department representatives.
. Prepare detailed as-built drawings that accurately reflect the
installation at each site.
. Close out each site by compiling and providing Company with a
comprehensive site completion package. This package will create an
historical record of everything related to the construction of the site
and includes, without limitation, site identification data, construction
permit documentation, material reconciliation construction test results,
site photographs and as-built drawings.
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ATTACHMENT A-13
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PROJECT MANAGEMENT
Contractor will provide the following services:
. Develop and implement a thorough deployment plan which tracks all
activities associated with site acquisition and construction management
for each Site. The deployment plan will clearly articulate schedule
dependencies and critical path elements, identify the allocation of
resources, and update regularly to reflect the actual deployment.
. Implement a quality assurance program which ensures that all activities
are performed to the highest quality standards.
. Utilize a comprehensive costs accounting system which will include, at a
minimum procedures for conducting financial tracking and management, and
comprehensive financial reporting.
. Implement comprehensive reporting mechanisms so that detailed site
progress is tracked on a daily basis and complete reports are provided
when required by Company.
. Implement a comprehensive filing system which ensures that all relevant
site information is organized and available. Utilize electronic means
whenever possible.
. Manage and coordinate interactions between Site Acquisition and Site
Construction. Ensure that both formal and informal communications
between these Milestone Services are effective and in the best interest
of Company.
. Manage and coordinate interactions among site acquisition and
construction management and other disciplines involved in the system
deployment (e.g., RF engineering, network engineering, marketing).
Ensure that both formal and informal communications among these
disciplines are effective and in the best interest of Company.
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ATTACHMENT B
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1. MILESTONE SERVICES
Upon completion to the satisfaction of the Company of the Milestones
Services set forth in Section 1 below, Company will receive the Milestone Rates
in Section 1 below:
Milestone Services Milestone Rate
------------------------------------------------------------------
A. Site Selection $3,000.00
B. Site Acquisition $4,333.33
C. Site Zoning $7,333.33
D. Site Construction $7,333.33
2. EXPENSES
Included Expenses
The following expenses are included in the Milestone Rates set forth
above: travel and living, GIS mapping; field expenses for maps, deeds and film
development, cellular phones/pagers; cellular/paging service; vehicles; office
equipment, including computers and copiers; office rent (including rent and
utilities other than the expenses for Contractor's use of space in the Company's
Charleston, S.C. office which expenses will be paid by the Company; office
supplies, overnight mail and telephone service.
Excluded Expenses
The following expenses shall be considered expenses payable by the
Company and are in addition to the Milestone Rates set forth above.
(i) Any and all construction materials used in the construction of
the Sites:
(ii) Any and all construction subcontractor cost including, but not
limited to, cable and antenna contractors, electricians, and
tower erectors;
(iii) Architectural and electrical drawings;
(iv) Azimuth verification surveys;
(v) Building inspection fees;
(vi) Cable sweeps and other technical tests;
(vii) Purchase price for real estate acquisition and easement rights;
(viii) All municipal filings, permit and inspection fees;
(ix) Delivery costs for all materials
(x) Engineering services;
(xi) Federal Aviation Administration study and analysis;
(xii) Floodway investigation;
(xiii) Independent inspection agencies;
(xiv) Legal support and expert witness fees for zoning hearings;
28
(xv) Option fees for leases, lease options, purchase agreements and
purchase agreement options;
(xvi) Phase I Environmental Study including soil compaction,
engineering and other inspections of the property required or
reasonably deemed necessary to provide a thorough due diligence
review of the project;
(xvii) Photo simulation;
(xviii) Site survey;
(xix) Soils tests and reports, including geotechnical testing;
(xx) Structure loading study and analysis for towers, rooftops, water
tanks, billboards and signs, and other similar facilities
expected to contain PCS equipment;
(xxi) Appraisals, title reports and title insurance premiums; and
(xxii) Tower/foundation design information.
3. TIME AND MATERIALS
Job Description
---------------
Project Manger $110.00 hour
Site Acquisition Manager $ 90.00 hour
Construction/Development Manager $ 70.00 hour
In-house Attorney $150.00 hour
Paralegal $ 60.00 hour
Zoning Manager $ 70.00 hour
Zoning Assistant $ 50.00 hour
Project Tracking $ 30.00 hour
Administrative Assistant $ 25.00 hour
Site Acquisition Specialist $ 70.00 hour
4. CANCELLATION FEES
If Company selects an alternative site candidate after a primary
candidate has been selected (or a second alternative site candidate after a
first alternative has been selected), Company shall pay Contractor for any
Milestone Service completed prior to date an alternative is selected and time
and materials for a Milestone Service in process in accordance with the fee
schedule above. Notwithstanding the foregoing, Contractor will not receive more
than 50% of the Milestone Rate for a Milestone Service in process as of the date
an alternative candidate is selected (the "Milestone In Process Fee").
Moreover, after an alternative candidate is selected (the "Milestone In Process
Fee"). Moreover, after an alternative candidate is selected, Contractor will
receive as additional payment for completion of the Milestone Service in process
the Milestone Rate less any Milestone In Process Fee paid to Contractor.
Notwithstanding the foregoing, if Company elects to withdraw greater than 5% of
the Search Rings assigned to Contractor then with respect to each replacement
Search Ring in excess of 5% Company shall pay Contractor for all Milestone
Services provided by Contractor.
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5. INVOICES
Contractor will submit invoices on the first of each month for
Milestone Services completed during the prior month. Such invoices will
describe the Services rendered and the time and materials attributable thereto
with such particularity and in a format reasonably acceptable to the Company.
Company will make payments for all amounts due hereunder within 30 days of
receipt of invoice less any payments in dispute which will be payable within 30
days of resolution of such dispute. Contractor shall be entitled to assess a 1
1/2% a month late fee on all outstanding invoices properly issued, aged over 45
days and not in dispute.
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ATTACHMENT C
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SCHEDULE
31
ATTACHMENT D
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PERSONNEL
32
ATTACHMENT E
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LEASE
33
