1
EXHIBIT 10.14
ENGINEERING SERVICE CONTRACT
SYSTEM DESIGN AND CONSTRUCTION INSPECTION
AGREEMENT made July 27, 1998, between ALAMOSA PCS, LLC. (hereinafter
called the "Owner") and XXXXX & XXXXXXX ENGINEERING CO., INC. (hereinafter
called the "Engineer").
WHEREAS, the Owner proposes to implement certain additions,
rehabilitations or improvements to its system (all such improvements,
rehabilitation, new construction with its associated facilities being
hereinafter called the "Project" TEXAS 907); and
WHEREAS, the Owner desires the Engineer to perform certain engineering
services in connection with the Project; and
WHEREAS, the Engineer represents that it has access to sufficient
experienced personnel and equipment to perform such engineering services for the
Project.
NOW, THEREFORE, in consideration of the mutual undertakings herein
contained, the parties hereto agree as follows:
SECTION 1. FINANCING OF THE PROJECT. The financing of the Project, including
costs of materials, construction, installation, and engineering will be the
responsibility of the Owner.
SECTION 2. GENERAL OBLIGATION. The Engineer shall diligently and competently
render engineering services which shall be reasonably necessary or advisable for
the expeditious, economical, and sound design of that portion of the Project
included in the Attachments and for such other preparatory work as is necessary
to place such portion of the Project in service, except where such duties are
excluded from the terms of this Agreement.
2.01 DESCRIPTION OF PROJECT. The Engineer shall perform the services identified
in the Attachments for the Owner's Project as described in general below.
Provide Engineering Services for implementation of a PCS system in the Owner's
Markets. The Owner, as an Affiliate of Sprint, has the rights to serve areas in
Texas, New Mexico, Colorado and Arizona as defined in the Sprint agreement
Service Area. The Scope of Work is outlined in Attachment C. The Contract will
cover the deployment of mobile switching centers and base stations for the
pre-op period, year 1 and year 2. Estimates are based upon the deployment of
three switching centers: Lubbock, Albuquerque and El Paso. Estimates are also
based upon deployment of owner supplied base station estimates. The estimated
fees are based upon base station deployment as follows: pre op - 103 base
stations, year 1 - 89 base stations, and year 2 - 25 base stations. The Pre op
period will run through December 1998. Year 1 services will be from January 1999
through December 1999. Year 2 services will be from January 2000 through
December 2000. This contract excludes services associated with tower and site
work which will be provided by others.
SECTION 3. TERMS AND CONDITIONS.
3.01 INSURANCE. The Engineer shall take out and maintain throughout the contract
period the following minimum insurance:
a. Workmen's compensation insurance in statutory limits covering all employees
of the Engineer who shall perform any of the obligations of the Engineer
hereunder, whether or not such insurance is required by the laws of the
State governing the employment of any such employee. If any employee is not
subject to the workmen's compensation
2
laws of such State, such insurance shall extend to such employee, voluntary
coverage to the same extent as though such employee were subject to such
laws.
b. Public liability and property damage liability insurance covering all
operations under the contact; limits for bodily injury or death, not less
than $1,000,000 for each occurrence; for property damage, not less than
$1,000,000 for each occurrence and $1,000,000 aggregate for occurrences
during the policy period.
c. Automobile liability insurance on all vehicles used in connection with the
contract whether owned, non-owned, or hired; public liability limits of not
less then $1,000,000 for one person and $1,000,000 for each occurrence;
property damage limit of $1,000,000 for each occurrence.
The Engineer shall furnish the Owner a certificate evidencing compliance with
the foregoing requirements which shall provide not less than thirty (30) days
prior written notice to the Owner of any cancellation or material reduction in
the insurance.
3.02 PROJECT SCHEDULE. The Engineer shall prepare in collaboration with the
Owner, a work and progress report schedule.
3.03 PLANS AND SPECIFICATIONS. Complete and detailed plans and specifications,
drawings, maps, and other documents as required for the construction of the
Project (all of the foregoing being herein sometimes collectively called the
"Plans and Specifications"), shall be prepared by the Engineer, pursuant to the
various Attachments to this Agreement, and made a part hereof.
3.04 GOVERNING LAW. This Agreement shall be governed by the laws of the State of
Texas.
3.05 STANDARDS. All maps, drawings, plans, specifications, estimates, studies
and other documents required to be prepared or submitted by the Engineer under
this Agreement shall conform to industry standards generally acceptable at the
date of this Agreement.
3.06 TERMINATION BY OWNER. The Owner may at any time terminate this Agreement
for cause by giving notice to the Engineer, in writing, to that effect not less
than thirty (30) days prior to the effective date of termination specified in
this notice. Such notice shall be deemed given if delivered or mailed to the
last known address of the Engineer. From and after the effective date specified
in such notice this Agreement shall be terminated. In the event of such
termination, the Owner shall immediately pay Engineer for all work performed on
a Time & Expense basis prior to the date of termination.
3.07 TERMINATION BY THE ENGINEER. The Engineer may at any time terminate this
Agreement by giving notice to the Owner, in writing, to that effect not less
than thirty (30) days prior to the effective date of termination specified in
this notice. Such notice shall be deemed given if delivered or mailed to the
last known address of the Owner. From and after the effective date specified in
such notice this Agreement shall be terminated, except that the Engineer shall
be entitled to receive compensation for services performed hereunder, computed
and payable as set forth in Section 3, 3.06 and 3.13.
3.08 OWNERSHIP OF DOCUMENTS. All reports, plans, specifications, computer files
and other documents prepared by the Engineer as instruments of service shall
remain the property of the Engineer. The Engineer shall retain all common law,
statutory and other reserved rights including copyrights.
3.09 EMPLOYEES' QUALIFICATIONS. The obligations and duties to be performed by
the Engineer under this Agreement shall be performed by persons qualified to
perform such duties efficiently. The Engineer, if the Owner shall so direct,
shall promptly replace any resident engineer or other person employed by the
Engineer in connection with the Project.
The term engineer or resident engineer as used in this Agreement shall mean a
person properly trained and experienced to perform the services required under
the terms of this Agreement, and does not mean that the person performing those
duties must be a licensed or a registered professional engineer.
2
3
3.10 LICENSE. The engineer shall comply with all applicable statutes pertaining
to engineering and warrants that Xxxxx X. Xxxxxxxx who will be in responsible
charge of the Project possesses license number 41663 issued to him by the State
of Texas on the 30th day of June, 1977.
3.11 PAYMENTS OF ENGINEER'S EMPLOYEES. Prior to the time when any payment shall
be made to the Engineer pursuant to this Agreement, the Engineer, as requested
by the Owner, shall furnish to the Owner, as a condition precedent to such
payment, a certificate to the effect that all salaries or wages earned by the
employees of the Engineer in connection with the Project have been fully paid by
the Engineer up to and including a date not more than thirty (30) days prior to
the date of such invoice. Before the time when the final payment provided to be
made pursuant to this Agreement shall be made to the Engineer by the Owner, the
Engineer shall also furnish to the Owner as a condition precedent to such
payment a certificate that all of the employees of the Engineer have been paid
by him for services rendered by them in connection with the Project, and that
all other obligations which might become a lien upon the Project have been paid.
3.12 ENGINEER'S RECORDS. The Owner shall have the right to inspect and audit all
payrolls, records, and accounts of the Engineer relevant to the work for the
Purposes of this Agreement and the Engineer agrees to provide all reasonable
facilities necessary for such inspection and audit.
3.13 COMPENSATION. For the purpose of this Agreement, compensation for each type
of work covered by the Attachments and thereby made a part of this Agreement
shall be as outlined below.
a. TIME & EXPENSE. The Owner shall pay the Engineer for all services
performed pursuant this Agreement, "Time & Expense" compensation as
defined below (not to exceed the Guaranteed Maximum Fee amount defined
in Form P506).
1. TIME RATES. For services defined as Time & Expense, the Time
rates will include all costs associated with the employee except
for those listed in 2 and 3 below. The hourly rates are
identified in the Attachments and will be multiplied by the
number of hours expended in each job category to determine the
Time Rates.
2. EXPENSE RATES. These will include subsistence expense, if any,
paid to (or on behalf of) employees, plus reasonable
transportation cost of employees, plus a fee of 7% of billed
labor to cover the cost of prints, mailing and transportation
expenses relating to printed and other materials and equipment,
and telephone and telecommunications expenses.
3. TEST EQUIPMENT AND COMPUTER USAGE. The Owner will pay the
Engineer for the costs of test equipment and computer usage as
identified in the Attachments.
4. REVIEW OF RATES. The Time rates and Test Equipment and Computer
Usage rates attached are valid until July 1, 1999. Beginning on
July 1, 1999 and on each subsequent anniversary of this Agreement
new Rates shall be mutually agreed to by both Parties, until
Completion or Termination of this Agreement.
b. GUARANTEED MAXIMUM FEE. The engineering cost identified in Form P506 as
the Guaranteed Maximum Fee is based upon the time and expense billing of
the project as defined in 2.01 Description of the Project.
CONTINGENCIES. The Guaranteed Maximum Fee in this engineering contract is based
upon a set amount of construction. In the implementation of a PCS project there
are many uncertainties. The fees do not include any contingency costs that may
or may not have been projected by the Owner. These contingencies, should they
occur, will require additional engineering to ensure that the Owner's system
performs as required. Should any additional sites, beyond those identified in
2.01 Description of Project, require additional engineering expenditures, the
Guaranteed Maximum Fee of this contract will be automatically amended to add any
additional sites the owner requires due to any contingencies. The Guaranteed
3
4
Maximum Fee will be amended upward on a per site fee. The per site fee will be
the amount of the Guaranteed Maximum Fee of the original scope divided by the
number of sites in the original scope.
INCENTIVE BONUS. The Owner and the Engineer mutually agree to strive to complete
the work defined in this Agreement at a cost less that the Guaranteed Maximum
Fee (GMF) amount defined in Form P506. As an incentive to reduce the cost of
engineering, if the total billing for the project is less than the amount
defined as the GMF, the Engineer will be paid an amount equal to 50% of the
difference between the GMF and the total billing as an Incentive Bonus. The
incentive bonus will be paid based upon the identified periods on the P506 forms
as follows.
PRE OP INCENTIVE. The amount of incentive payable at the conclusion of
the pre op period will be 75% of the calculated incentive amount due. The
remaining 25% will be held as a reserve for future periods. The incentive amount
due is calculated by taking the GMF for the pre op period less the actual
billing as follows.
Incentive amount = [Pre op GMF - Pre op billing]*50%
Incentive payable = incentive amount * 75%
The incentive payable will be determined within 45 days after the
completion of the pre op period as defined in this agreement.
YEAR 1 INCENTIVE. The amount of incentive payable at the conclusion of
the year 1 period will be 75% of the calculated incentive amount due. The
remaining 25% will be held as a reserve for future periods. The incentive amount
due is calculated by taking the GMF for all periods to date less the actual
billing for all periods as follows.
Incentive amount = [Pre op GMF + Year 1 GMF - Pre op billing -
Year 1 times billing]*50%
Incentive payable = incentive amount * 75% - pre op incentive
payable
The incentive payable will be determined within 45 days after the
completion of the year 1 period as defined in this agreement.
YEAR 2 (CONTRACT) INCENTIVE. The amount of incentive payable at the
conclusion of the contract which is the year 2 period is calculated by taking
the GMF for all periods to date less the actual billing for all periods as
follows.
Incentive amount = [Total GMF - Total billing]*50%
Incentive payable = incentive amount - total incentive paid to
date
The incentive payable will be determined within 45 days after the
completion of the Contract period as defined in this agreement.
3.14 TAXES. Compensation payable to the Engineer under any of the attachments to
this Agreement shall be in addition to taxes, or levies, (excluding Federal,
State and Local Income Taxes), which may be assessed against the Engineer by the
State or political sub-division directly on services performed or payments for
services performed by the Engineer pursuant to this Agreement. Such taxes or
levies, which the Engineer may be required to collect or pay, shall, in turn, be
added by the Engineer to invoices submitted to the Owner pursuant to this
Agreement.
3.15 INTEREST. Interest at the rate of TWELVE percent (12%) per annum shall be
paid by the Owner to the Engineer on any unpaid balance due the Engineer,
commencing thirty (45) days after the due date, provided that the delay in
payment beyond due date shall not have been caused by any conditions within the
control of the Engineer. Such compensation shall be paid ten (10) days after the
amount of the interest has been determined.
All amounts received by Engineer shall be applied first to accrued
unpaid interest and then to outstanding invoices for services and associated
expenses.
3.16 NON-ASSIGNMENT. The obligations of the Engineer under this Agreement shall
not be assigned without the approval in writing of the Owner.
3.17 ATTACHMENTS. The following listed Attachments, when checked in appropriate
boxes, are attached to and made a part of this Agreement, by this reference.
/ XX / Attachment A - Hourly Billing Rates
4
5
/ XX / Attachment B - Test Equipment and Computer Usage Rates
/ XX / Attachment C - PCS Engineering Services
/ XX / Form P506 - Guaranteed Maximum Fee for PCS Engineering Services
3.18 SERVICE ADDITION. If after execution of this Agreement, a service not
listed as an Attachment in Paragraph 3.17 above is added to a this Agreement, an
amendment to this Agreement is required.
3.19 INVOICE INFORMATION. The Engineer shall furnish to the Owner detailed
itemized invoices on a monthly basis.
3.20 ENGINEERING FEE. The total cost of engineering shall not exceed the
Guaranteed Maximum Fee as set out in Form P506. Any change to the Scope of Work
outlined in Attachment C will require a contract amendment.
3.21 COMPENSATION FOR CORRECTIONS. No compensation shall be due or payable to
the Engineer, pursuant to this Agreement, for any engineering services performed
by the Engineer in connection with effecting of corrections to the Design of the
Project, when such corrections are required as a direct result of negligence by
the Engineer to properly fulfill any of his obligations as set forth in this
Agreement.
3.22 COMPENSATION PAYMENT. Compensation payable shall be due and payable ten
(10) days after approval of the Owner of the services performed. The Engineer's
invoice shall include detail of the services performed. The Owner must notify
the Engineer within ten (10) days of receipt of invoice of any discrepancies
which require correction or of any additions as a precedent for payment of such
charges. If no discrepancies are noted within ten (10) days of receipt of
invoice, the invoice will be considered to be approved. On invoices where
discrepancies are noted, all charges not identified for correction will be
considered approved and shall be due ten (10) days from the date of the
notification.
3.23 INDEMNIFICATION. Engineer shall hold Owner and Owner's employee's agents,
officers, and directors, harmless from any and all claims for injuries to
persons or for damage to property happening by reason of any negligence, default
or misconduct, on the part of the Engineer, his agents, servants or employees,
during the performance of this contract. This indemnity shall include, but not
be limited to, all expenses of litigation, court costs and reasonable attorney's
fees.
Owner shall hold Engineer and Engineer's employee's agents, officers, and
directors, harmless from any and all claims for injuries to persons or for
damage to property happening by reason of any negligence, default or misconduct,
on the part of the Owner, his agents, servants or employees, during the
performance of this contract. This indemnity shall include, but not be limited
to, all expenses of litigation, court costs and reasonable attorney's fees.
3.24 LIMITATION OF LIABILITY. In no event will Engineer be liable for
consequential damages, including lost profits, loss of investment, or other
incidental damages incurred from Owner's investment based on the Scope of Work
to be performed by Engineer under this Agreement. The Engineer's total liability
for work performed shall never exceed the amount paid by the Owner for services
performed under this Agreement.
3.25 FORCE MAJEURE. If the performance of the Agreement, or of any obligation
hereunder is prevented, restricted or interfered with by reason of fires,
breakdown of plant, labor disputes, embargoes, government ordinances or
requirements, civil or military authorities, acts of God or the public enemy,
acts or omissions of carriers, or other causes beyond the reasonable control of
the party whose performance is affected, then the party affected, upon giving
prompt notice to the other party, shall be excused from such performance on a
day-for-day basis to the extent of such prevention, restriction, or interference
(and the other party shall likewise be excused from performance of its
obligations on the day-for-day basis to the extent such party's obligations
relate to the performance so prevented, restricted or interfered with); provided
that the party so affected shall use its best efforts to avoid or remove such
causes.
3.26 DISPUTES. Owner and Engineer agree to submit to non-binding arbitration as
a first step toward resolution of any disputes arising under this contract.
5
6
3.27 SOLICITATION TO HIRE EMPLOYEES. Owner and Engineer acknowledge and agree
that each party has invested significant time and resources in the recruitment
and training of its employees. Therefore, to the extent permitted by applicable
law, both parties agree that, during the term of this Agreement and for one (1)
year thereafter, that neither party will directly or indirectly solicit or seek
to employ the employees of the other party except as by mutual agreement of the
Owner and Engineer.
6
7
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed.
ALAMOSA PCS, LLC.
-----------------------------------------
Owner
BY
---------------------------------------
President
ATTEST:
------------------------------------
Secretary
XXXXX & XXXXXXX ENGINEERING CO., INC.
-----------------------------------------
Engineer
BY
---------------------------------------
Vice President
ATTEST:
------------------------------------
Assistant Secretary
7
8
ADDENDUM I TO
ENGINEERING SERVICE CONTRACT SYSTEM DESIGN
AND CONSTRUCTION INSPECTION
This Addendum contains certain changes, additional or supplemental
terms and provisions to that certain Engineering Service Contract System Design
and Construction Inspection Agreement (the "Xxxxx & Xxxxxxx Agreement") entered
into contemporaneously with and by the same parties as the Engineering Service
Contact System Design and Construction Inspection Agreement dated July 27, 1998,
by and between Alamosa PCS LLC, as "Owner", and Xxxxx & Xxxxxxx Engineering Co.,
Inc., as "Engineer". Except for the express modifications made in this Addendum,
the Engineering Service Contract System Design and Construction Inspection
Agreement continues in full force and effect.
The Xxxxx & Xxxxxxx Agreement is modified as follows:
1. Paragraph 3.01 shall delete the last sentence thereof and
substitute the following:
"The Engineer shall furnish the Owner a certificate evidencing
compliance with the foregoing requirements showing the Owner
and Sprint Spectrum L.P., a Delaware Limited Partnership,
WirelessCo, L.P., a Delaware Limited Partnership, and
SprintCom, Inc., a Kansas Corporation, as additional insured.
Such certificates and policies of insurance shall provide not
less than thirty (30) days written notice to the Owner and all
additional insureds of any cancellation or material reduction
in the insurance."
2. Paragraph 3.04 is changed to read as follows:
"3.04 GOVERNING LAW AND PERFORMANCE. This Agreement shall be
governed by the laws of the State of Texas and shall be deemed
to be executed in and performance called for in Lubbock,
Lubbock County, Texas."
3. Paragraph 3.06 will be changed to read as follows:
"3.06 TERMINATION BY OWNER. The Owner may terminate this
Agreement for cause. Such termination may be made only after
first giving the Engineer written notice giving the Engineer
at least ten (10) days to cure any default or breach of the
contract by Engineer. If Engineer fails to cure said default
or breach within this twenty (20) day notice, the Owner may
then give ten (10) days written notice prior to the effective
date of termination of this Agreement. Such notice shall be
deemed given if delivered or mailed to the last known address
of the Engineer. From and after the effective date specified
in such termination notice this Agreement shall be terminated.
In the event of such termination, the Owner shall immediately
pay Engineer compensation for services performed hereunder,
computed and payable as
================================================================================
ADDENDUM I TO PAGE 1 OF 7
ENGINEERING SERVICE CONTRACT SYSTEM DESIGN AND CONSTRUCTION INSPECTION
9
set forth in Section 3, less any damages caused by the
termination. Cause for termination shall include, but not be
limited to, gross negligence in the performance of its duties
under this Agreement, willful or intentional breach or
habitual neglect of its duties under this Agreement,
intentional disregard of the terms and provisions of the
Agreement, misconduct in the performance of a duty called for
under the terms of this Agreement, or committing dishonest
acts."
4. Paragraph 3.07 shall be changed to read as follows:
3.07 TERMINATION BY THE ENGINEER. The Engineer may terminate
this Agreement for cause. Such termination may be made only
after first giving the Owner written notice giving the Owner
at least ten (10) days to cure any default or breach of the
contract by Owner. If Owner fails to cure said default or
breach within this twenty (20) day notice, the Engineer shall
then give ten (10) days written notice prior to the effective
date of termination of this Agreement. Such notice shall be
deemed given if delivered or mailed to the last known address
of the Owner. From and after the effective date specified in
such termination notice this Agreement shall be terminated. In
the event of such termination, the Engineer shall be entitled
to receive compensation for services performed hereunder,
computed and payable as set forth in Section 3. Cause for
termination shall include, but not be limited to, gross
negligence in the performance of its duties under this
Agreement, willful or intentional breach or habitual neglect
of its duties under this Agreement, intentional disregard of
the terms and provisions of the Agreement, misconduct in the
performance of a duty called for under the terms of this
Agreement, or committing dishonest acts."
5. Paragraph 3.10 shall have added thereto the following
sentence:
"In addition to the Texas license set forth above, Xxxxx X.
Xxxxxxxx possesses New Mexico license number 66655; Colorado
license number 15576; and Arizona license number 11828."
6. Paragraph 3.13(a)(4) shall have added thereto the following:
"In the event that the parties shall fail to mutually agree on
any new Rates, in that event, there shall be no change in the
Rates and the Time Rates and Test Equipment and Computer Usage
rates attached throughout the entire term of this Agreement.
Such failure to mutually agree on any new Rates shall not be a
breach nor a cause for a breach of this Agreement. Provided,
however, that owner shall not unreasonably withhold consent to
new Rates which are at or below Engineer's normal and usual
Rates for such services to Engineer's clients and customers."
================================================================================
ADDENDUM I TO PAGE 2 OF 7
ENGINEERING SERVICE CONTRACT SYSTEM DESIGN AND CONSTRUCTION INSPECTION
10
7. Paragraph 3.13(b) shall have added thereto the following:
"Notwithstanding anything herein to the contrary or apparently
to the contrary, the foregoing incentive bonus shall only be
earned by the Engineer, if the Engineer performs its services
within the time frames called for as set forth in the
finalized version of the Business Plan for the Sprint
Affiliate or Sprint Management Agreement, which is the basis
of this Agreement. Attached hereto marked Attachment D and
incorporated herein by this reference as if copied herein in
full is a Time Line based upon that finalized version of the
Business Plan referred to above. The Engineer agrees that in
order to be entitled to any incentive bonus as set forth in
this provision, that the Engineer must complete all of those
services called for to be made and completed by the Engineer
within the time frames set forth in the Attachment D. If for
any reason there is a delay in providing the services of the
Engineer under this Agreement, which delay is within the
definition of force majeure as set forth in Paragraph 3.25, or
any matter over which the Engineer has no control, in that
event, the Engineer shall be entitled to an extension of the
Time Line items equal to the number of days delay caused by
such matters within the definition of force majeure as set
forth in Paragraph 3.25, or any matter over which the Engineer
has no control. If the Engineer does not meet the Time Line as
set forth in Attachment D, in that event, the Engineer shall
not be entitled to the incentive bonus for any or all of the
three (3) incentive bonuses set forth above, being the pre op
incentive, the year one incentive in the year two (contract)
incentive. If the Engineer does not provide its services
within the time frame for any of these incentive periods, the
Engineer may nonetheless be entitled to earn the incentive
bonus for any other incentive period, if the Engineer provides
its services within the time frames for any of the incentive
bonuses referred to above. Engineer also agrees that at the
time of the execution of this Agreement and at the time of any
change in the Time rates in this Agreement, that the Time
rates of this Agreement for Engineer's services, shall be at
or below Engineer's normal and usual rate for such services to
Engineer's clients and customers."
8. Paragraph 3.15 shall be changed by deleting in the second line
thereof the word thirty and (45) and substituting therefor the
word sixty and (60).
9. Paragraph 3.23 shall be changed by adding the following
paragraph:
"In the event that either party hereto shall provide the
indemnification set forth in the preceding paragraphs of this
Section, in that event, the party to whom indemnification is
given shall have the right to choose and approve of any
attorneys or firm of attorneys who may represent them in any
matter for which indemnification is being provided by the
other party. The costs of
================================================================================
ADDENDUM I TO PAGE 3 OF 7
ENGINEERING SERVICE CONTRACT SYSTEM DESIGN AND CONSTRUCTION INSPECTION
11
such representation shall be paid by the party who is
providing the indemnification and shall be paid at the normal
and usual rates of such attorneys and in the manner to which
is normal and usual for such representation."
10. Paragraph 3.26 is hereby changed to read as follows:
"3.26 DISPUTES. Owner and Engineer agree to the following in
regard to any disputes between them arising under this
contract.
1. MEDIATION. Owner and Engineer agree to mediate any
dispute arising under this contract. In the event of
any dispute, the parties, within thirty (30) days of
a written request for mediation, shall attend, in
good faith, a mediation in order to make a good faith
reasonable effort to resolve any dispute arising
under this contract. If this good faith mediation
effort fails to resolve any dispute arising under
this contract, Owner and Engineer agree to arbitrate
any dispute arising under this contract. This
arbitration shall occur only after the mediation
process described herein.
2. ARBITRATION. Owner and Engineer agree, as
concluded by the parties to this Agreement on the
advice of their counsel, and as evidenced by the
signatures of the parties and of their respective
attorneys, it is agreed that all questions as to
rights and obligations arising under the terms of
this contract are subject to arbitration and such
arbitration shall be governed by the provisions of
the Texas General Arbitration Act (Texas Civil
Practice and Remedies Code ss. 171.001 et seq as it
may be amended from time to time).
3. DEMAND FOR ARBITRATION. If a dispute should arise
under this contract, either party may within thirty
(30) days make a demand for arbitration by filing a
demand in writing with the other.
4. APPOINTMENT OF ARBITRATORS. The parties to this
Agreement may agree on one arbitrator, but in the
event that they cannot so agree, there shall be three
arbitrators, one named in writing by each of the
parties within thirty (30) days after demand for
arbitration is made, and a third to be chosen by the
two so named. Should either party fail to timely join
in the appointment of the arbitrators, the
arbitrators shall be appointed in accordance with the
provisions of Texas Civil Practice and Remedies Code
ss. 171.041.
5. HEARING. All arbitration hearings conducted under
the terms of this Agreement, and all judicial
proceedings to enforce any of the provisions of this
Agreement, shall take place in Lubbock County, Texas.
The hearing before the arbitrators of the matter to
be
================================================================================
ADDENDUM I TO PAGE 4 OF 7
ENGINEERING SERVICE CONTRACT SYSTEM DESIGN AND CONSTRUCTION INSPECTION
12
arbitrated shall be at the time and place within that
County selected by the arbitrators or if deemed by
the arbitrators to be more convenient for the parties
or more economically feasible, may be conducted in
any city of the State of Texas.
6. ARBITRATION AWARD. If there is only one
arbitrator, his or her decision shall be binding and
conclusive. The submission of a dispute to the
arbitrators and the rendering of their decision shall
be a condition precedent to any right of legal action
on the dispute. A judgment confirming the award of
the arbitrators may be rendered by any court having
jurisdiction; or the court may vacate, modify, or
correct the award in accordance with the provisions
of the Texas General Arbitration Act (Texas Civil
Practice and Remedies Code ss. 171.087 et seq as it
may be amended from time to time).
7. NEW ARBITRATORS. If the arbitrators selected,
pursuant to Paragraph c., above, shall fail to render
a decision within thirty (30) days of the date of
hearing, they shall be discharged, and three new
arbitrators shall be appointed and shall proceed in
the same manner, and the process shall be repeated
until a decision is finally reached by two of the
three arbitrators selected.
8. COSTS OF ARBITRATION. The costs and expenses of
arbitration, including the fees of the arbitrators,
shall be borne by the losing party or in such
proportions as the arbitrators shall determine.
9. CONDUCT OF ARBITRATION. Any arbitration brought
under the terms of this Agreement shall be conducted
in the following manner:
a. Time Limitations. The parties agree that
the following time limitations shall govern
the arbitration proceedings conducted under
the terms of this Agreement:
(i) Any demand for arbitration must
be filed within thirty (30) days of
the date on which the dispute arises
or the alleged breach occurs.
(ii) Each party must select an
arbitrator within thirty (30) days
of receipt of notice that an
arbitration proceeding has
commenced. In the event that no such
selection is made, the arbitrator
selected by the other party may
conduct the arbitration proceeding
without selecting any other
arbitrator.
================================================================================
ADDENDUM I TO PAGE 5 OF 7
ENGINEERING SERVICE CONTRACT SYSTEM DESIGN AND CONSTRUCTION INSPECTION
13
(iii) The hearing must be held
within thirty (30) days of the date
on which the third arbitrator is
selected.
(iv) Hearing briefs must be selected
within ten (10)
days of the hearing date.
(v) The arbitration award must be
made within thirty (30) days of the
receipt of hearing briefs.
b. Discovery in Arbitration Proceedings. The
parties agree that discovery may be
conducted in the course of the arbitration
proceeding in accordance with the following
provisions:
(i) Each party may notice no more
than three (3) depositions in total,
including both witnesses adherent to
the adverse party and third-party
witnesses.
(ii) Each party may serve no more
than twenty-five (25) requests for
admission on the other party. No
requests may be served within ten
(10) days of the date of hearing,
unless the parties otherwise
stipulate. All requests for
admission shall be responded to
within ten (10) days of service of
the requests, unless the parties
otherwise stipulate.
(iii) Each party may serve no more
than fifty (50) interrogatories on
the other party. No interrogatory
shall contain subparts, or concern
more than one topic or subject of
inquiry. Interrogatories may not be
phrased so as to circumvent the
effect of this clause. No
interrogatories may be served within
ten (10) days of the date of
hearing, unless the parties
otherwise stipulate. All
interrogatories shall be responded
to within ten (10) days of service
of the interrogatories, unless the
parties otherwise stipulate.
(iv) Each party may serve no more
than ten (10) requests for
production of documents on the other
party. No request for production of
documents shall contain subparts, or
seek more than one type of document.
Requests for production of documents
may not be phrased so as to
circumvent the effect of this
clause. Unless the parties otherwise
stipulate, requests for production
of documents may not be served
within ten (10) day of the date of
hearing, and all requests for
================================================================================
ADDENDUM I TO PAGE 6 OF 7
ENGINEERING SERVICE CONTRACT SYSTEM DESIGN AND CONSTRUCTION INSPECTION
14
production of documents shall be
responded to within ten (10) days of
service of the requests.
(v) If any party contends that the
other party has served discovery
requests in a manner not permitted
by this Section, or that the other
party's response to a discovery
request is unsatisfactory, the party
may request the arbitrators to
resolve such discovery disputes. The
arbitrators shall prescribe the
procedure by which such disputes are
resolved.
The foregoing Addendum is hereby agreed to this 27th day of July, 1998.
OWNER
ALAMOSA PCS LLC
By /s/ Xxxxx Xxxxxxxx
----------------------------------
XXXXX X. XXXXXXXX, Chairman
ENGINEER
XXXXX & XXXXXXX ENGINEERING CO., INC.
By /s/ X. X. Xxxxx
---------------------------
W. Xxx Xxxxx (Name)
---------------------------
Vice President (Title)
---------------------------
/s/ Xxxxx Xxxxxx
----------------------------------
Assistant Secretary
Approved as to the Mediation and Arbitration provisions in paragraph 10
above.
Xxxxxxxx, Xxxxxx & Xxxxx, L.L.P.
By: /s/ Xxxx XxXxxxxxx, Xx.
----------------------------------
Xxxx XxXxxxxxx, Xx.
Attorneys for Alamosa PCS LLC
/s/ Xxxxx Xxxxxx
----------------------------------
Xxxxx Xxxxxx
Attorney for Xxxxx & Xxxxxxx
Engineering Co., Inc.
================================================================================
ADDENDUM I TO PAGE 7 OF 7
ENGINEERING SERVICE CONTRACT SYSTEM DESIGN AND CONSTRUCTION INSPECTION
15
AMENDMENT TO ENGINEERING SERVICE CONTRACT
SYSTEM DESIGN AND CONSTRUCTION INSPECTION
This Amendment, made this 1st day of September, 1999, contains certain
changes, additional or supplemental terms and provisions to the Engineering
Service Contract System Design and Construction Inspection dated July 27, 1998
and Addendum I thereto of same date ("Engineering Service Contract") by and
between ALAMOSA PCS LLC and Xxxxx & Xxxxxxx Engineering Co., Inc. Except for the
express modifications made in this Amendment, the Engineering Service Contract
as previously amended by Addendum I thereto continues in full force and effect.
In consideration of the mutual undertakings herein contained, the parties agree
to amend the Engineering Service Contract as follows:
1. Pursuant to Paragraph 3.13.b of the Engineering Service Contract, the
Guaranteed Maximum Fee is automatically amended to add additional sites.
The Guaranteed Maximum Fee is amended upward on a per site fee. The per
site fee is the amount of the Guaranteed Maximum Fee of the original
scope divided by the number of sites in the original scope. The per site
fee is $24,442 calculated using the original Guaranteed Maximum Fee of
$5,304,000 and 217 sites as noted in Paragraph 2.01 of the Engineering
Service Contract. The addition of sites is as follows:
MARKET ORIGINAL SITES CURRENT SITES CHANGE IN SITES
Phase I
Albuquerque/Santa Fe 47 67 20
El Paso/Las Cruces 43 38 (5)
Laredo 13 20 7
Phase 2A
Lubbock 21 26 5
Amarillo 14 21 7
Midland/Odessa 18 15 (3)
Phase 2B
Abilene/San Xxxxxx 25 26 1
Prescott/Flagstaff 6 12 6
Pueblo/Grand Junction 14 14 --
Phase 3A
Eagle Pass/Del Rio 3 6 3
Farmington 3 3 --
Roswell/Carlsbad 6 6 --
Gallup 4 4 --
Phase 3B
I-17 -- 13 13
I-25 -- 17 17
---------------------------------------------------------------------------------------
TOTALS 217 288 71
Engineering Service Contract Amendment 1
September 1, 1999
16
Therefore, the increase in the Guaranteed Maximum Fee is $1,735,382 (71
sites at $24,442 per site). The amended Guaranteed Maximum Fee is
$7,039,382.
2. The Pre-Op period is extended from December 1998 through August 1999.
The Year 1 services will be from September 1999 through August 2000. The
Year 2 services will be from September 2000 through August 2001.
The base station deployment schedule is changed as follows:
PRE-OP:
Albuquerque/Santa Fe 67 sites 80% 54 net sites
El Paso/Las Cruces 38 sites 100% 38 net sites
Laredo 20 sites 95% 19 net sites
Lubbock 26 sites 95% 24 net sites
Midland/Odessa 15 sites 95% 14 net sites
Amarillo 21 sites 90% 19 net sites
------------------------------------------------------------
TOTAL NET PRE-OP SITES 168
YEAR 1:
Albuquerque/Santa Fe 67 sites 20% 13 net sites
Laredo 20 sites 5% 1 net sites
Lubbock 26 sites 5% 2 net sites
Midland/Odessa 15 sites 5% 1 net sites
Amarillo 21 sites 10% 2 net sites
Abilene/San Xxxxxx 26 sites 100% 26 net sites
Prescott/Flagstaff 12 sites 100% 12 net sites
Pueblo/Grand Junction 14 sites 100% 14 net sites
Eagle Pass/Del Rio 6 sites 100% 6 net sites
Farmington 3 sites 100% 3 net sites
Roswell/Carlsbad 6 sites 100% 6 net sites
Gallup 4 sites 100% 4 net sites
------------------------------------------------------------
TOTAL NET YEAR 1 SITES 90
YEAR 2:
I-17 13 sites 100% 13 net sites
I-25 17 sites 100% 17 net sites
------------------------------------------------------------
TOTAL NET YEAR 2 SITES 30
Attached are revised estimated fee schedules (H&R Form P506C) that
reflect the amended number of sites and deployment schedule.
3. Pursuant to Paragraph 3.13.a.4, attached is a revised Attachment A
reflecting the new time rates as of July 1, 1999 for the designated
classifications.
Engineering Service Contract Amendment 2
September 1, 1999
17
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed.
ALAMOSA PCS, LLC.
--------------------------------------
Owner
ATTEST:
/s/ XXXXX XXXXXX BY /s/ XXXXX XXXXXXXX
-------------------------------- --------------------------------------
Secretary Chairman
XXXXX & XXXXXXX ENGINEERING CO., INC.
--------------------------------------
Engineer
ATTEST:
/s/ XXXXXX X. XXXXXXXXXX BY /s/ XXXX XXXXXXX
-------------------------------- --------------------------------------
Assistant Secretary Chief Operating Officer
Engineering Service Contract Amendment 3
September 1, 1999
