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EXHIBIT 10.2
GENERAL SUPPLY AGREEMENT
This agreement is made as of September 1, 1997, between AT&T Wireless Services,
Inc. ("AWS"), whose principal office is located in Kirkland, Washington, on
behalf of its operating companies and affiliates, and FWT Inc., ("FWT") whose
principal office is located in Ft. Worth, Texas.
WHEREAS, AWS is interested in obtaining monopoles, antenna structures, and
platforms on an as needed basis, with committed monopole shipment lead times to
meet its anticipated needs, and other products and services on an as needed
basis as offered by FWT, and
WHEREAS, FWT has sufficient experience and expertise in manufacturing and
supplying such products and related products to meet company needs, and has the
ability to commit in advance to ship such products within six to eight weeks of
receipt of AWS's order.
NOW, THEREFORE, in consideration of the mutual promises, covenants, and
conditions herein contained, AWS and FWT agree as follows:
1. AWS'S TERMS AND CONDITIONS.
Except as expressly provided herein, all transactions between AWS and FWT will
be in accordance with the provisions of Attachment A, entitled "AT&T Wireless
Services General Terms and Conditions", which is hereby incorporated by
reference.
2. PERIOD OF AGREEMENT.
This Agreement shall remain in effect for a period of three (3) years
commencing from the effective date of Agreement unless terminated by either
party. This Agreement may be extended beyond its original term for any
specified period of time mutually agreed upon by both parties.
3. TERMINATION.
AWS shall have the right, at any time, to terminate this Agreement for
convenience upon one hundred eighty (180) days advance written notice to FWT.
In the event that a quarterly price adjustment is indicated by changes in the
pricing indices, pursuant to Attachment B, Section 3.5.4, but AWS and FWT are
unable to reach agreement on such adjustment, FWT shall have the right to
terminate this Agreement upon one hundred and twenty (120) days advance written
notice to AWS. Either party shall have the right to terminate this Agreement
in the event of a material breach of this Agreement by the other party,
provided that the breaching party does not or can not cure the breach within
thirty (30) days following receipt of notice of the breach.
4. PRODUCTS AND SERVICES COVERED.
FWT agrees to sell to AWS certain products ("Products") and services
("Services"), including but not limited to those specified in Attachment B and
Attachment C.
5. INSTALLATION AND TRAINING.
Installation Assistance
If applicable to the order placed by AWS and if requested in advance
by AWS, FWT shall make available at the installation site, a field
engineer to render installation and assistance as required by AWS.
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Training.
If applicable to the order placed by AWS and if requested by AWS, FWT
will:
a. provide instructors and the necessary instructional material
of FWT's standard format to train instructors or other personnel in
the safety, installation, planning and practices, operation,
maintenance and repair of Products furnished hereunder. These classes
shall be conducted at reasonable intervals at locations agreed upon by
both parties.
Or, at the option of AWS,
b. provide to AWS FWT's training modules or manuals and any
necessary assistance, covering those areas of interest outlined in (a)
of this section, sufficient in detail, format and quantity to allow
AWS to develop and conduct a training program.
6. PRIMARY SUPPLIER.
AWS recognizes FWT as its primary supplier for Products offered under this
Agreement, and warrants that it shall endeavor in good faith to use FWT as its
primary supplier for seventy percent (70%) of the Products it purchases during
the term of this Agreement. This seventy percent (70%) goal is a good faith
estimate by AWS, but actual purchases by AWS may vary from this amount. AWS
will actively support FWT's Primary Supplier status and will make all
reasonable efforts to ensure FWT is and remains AWS's Primary Supplier during
the term of this Agreement. AWS and FWT agree to fully cooperate in the design
and development of the Products to meet AWS's future needs and to share
information and resources necessary to ensure such product availability to AWS.
The foregoing notwithstanding, it is expressly understood and agreed that this
Agreement does not grant FWT an exclusive privilege to sell to AWS any or all
products which AWS may require; and AWS may contract with other manufacturers
and suppliers for the procurement of comparable products.
7. PREFERENCES AND RIGHTS OF THIRD PARTIES.
Instead of buying Products directly, AWS may arrange for third parties to buy
the Products. Except in cases where the third party manufacturers its own
Product or is able to offer AWS a better overall bargain, AWS agrees to direct
such third parties to purchase the Product from FWT, provided that FWT Products
meet the specifications set forth by the third party. At AWS's written request,
FWT agrees to extend all rights and privileges under this Agreement to such
third parties. The third party will be bound by the terms and conditions
contained herein and AWS shall be released from any obligations with respect to
those orders; provided, however, that AWS may agree to guarantee payment to FWT
for such orders. AWS acknowledges that FWT reserves the right to require the
third party to enter a separate agreement which is consistent with this
Agreement, and AWS agrees to cooperate fully in the establishment of any such
agreement.
8. DISASTER RESPONSE FWT.
AWS and FWT recognize the urgent nature of disaster response and recovery and
the importance of FWT's Products to AWS in such response. Both parties agree to
develop and execute a specific plan to deal with disaster response and
recovery. In the event of a disaster, and in the absence of such a plan, FWT
agrees to render any reasonable assistance deemed necessary by AWS to aid in
its disaster response and recovery efforts and such assistance shall be given
FWT's highest priority.
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9. PRICING AND PRICE CHANGES.
Prices for Products purchased under this Agreement shall be in accordance with
Attachment B and C. Such pricing shall be subject to change not more than once
quarterly and only if mutually agreed upon between AWS and FWT.
10. TITLE AND RISK OF LOSS.
Title to Products purchased by AWS hereunder shall vest in AWS and risk of loss
pass to AWS when the Products have been shipped by FWT to the location(s)
specified by AWS using the carrier designated by AWS unless additional Services
after delivery are specified in a AWS Purchase Order, in which case title shall
not vest nor shall risk of loss pass until such Services have been performed by
FWT and been accepted by AWS.
AWS shall assume risk of loss or damage to all Products during transportation.
FWT shall not be responsible for any loss or damage to Products ordered
hereunder, after such Products have been shipped to the premises designated by
AWS, and AWS agrees to hold FWT harmless from such loss or damage.
11. DAMAGED SHIPMENTS.
Claims for transportation damage shall be filed and processed by AWS or AWS's
agent.
12. INCOMPLETE SHIPMENTS.
Incomplete shipments and backordered Products shall be expedited at FWT expense
and AWS's order shall be treated as FWT's highest priority until such time as
such order has been completed.
13. WARRANTIES
FWT warrants that all items to be furnished will be new, unless otherwise
specified, and that all Products will be of highest quality, free from fault or
defect and will conform with the requirements as set forth in FWT's standard
warranty.
The warranty as stated shall not limit the application of any other warranty
which may be applicable under any law or laws to which this Agreement between
the parties is subject. FWT warrants that all Products and Services covered by
this Agreement shall be provided in a professional manner and shall not result
in defects in workmanship, and shall be in accordance with any specifications
given, in writing, by AWS to FWT for a period of five (5) years from the date
of final invoice. If any such defects appear within that time, FWT shall repair
such work affected by defects at no cost to AWS. The representation by FWT of
the quality of all Products and Services shall be an essential condition of
this Agreement, and any non-compliance therewith shall give AWS, in addition to
any other rights AWS may have, the right to reject any of the Products and
Services ordered hereunder.
14. INVOICING AND PAYMENT.
FWT shall render an invoice in accordance with AWS's purchase order. Due dates
for the payment of the invoice shall be computed from the date of receipt of
the invoice by AWS, such invoice to be issued by FWT upon completion of
manufacturing of the Product or the Target Shipment Date (as defined in
Attachment B), whichever is later.
15. LAWS, RULES AND REGULATIONS.
FWT agrees that it and its subcontractors shall give access to the authorized
representatives of the Secretary of Labor for the purpose of inspecting or
carrying out any of the Secretary's duties under the Occupational Safety and
Health Act of 1970, as amended. FWT shall be responsible for any violation by
it of said Act, of any regulation issued thereunder, shall immediately remedy
any conditions giving rise
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to such a violation, and shall defend, indemnify, and hold AWS harmless from
any fine, penalty or liability in connection therewith.
16. EXECUTIVE ORDER COMPLIANCE.
FWT expressly agrees not to discriminate against any employee or applicant for
employment because of race, color, religion, sex, national origin or handicap,
and shall during the performance of this Agreement comply with all applicable
Executive Orders and federal regulations.
17. BANKRUPTCY.
Either party may terminate this Agreement by notice in writing in the event
that the other makes an assignment for the benefit of creditors, or admits in
writing inability to pay debts as then mature; or a trustee or receiver of the
other, or any substantial part of the other's assets, is appointed by any
court.
18. TAXES.
Federal Sellers' and Retailer's Excise, State or Local Sales and Use Taxes,
when applicable, shall be billed as separate items on FWT's invoices, and are
not included in FWT's prices.
19. NOTICES.
Notice or other advice required to be given hereunder shall be deemed given
when deposited, postage prepaid, in the United States Mail.
AWS: Legal department
AT&T Wireless Services, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
FWT: Mr. Xxx Xxxxx
FWT Inc.
0000 Xxxx Xxxx 000 Xxxxx
Xx. Xxxxx, XX 00000-0000
If either party changes its address during the term thereof, it shall so advise
the other party in writing, and all notices and advice thereafter required to
be given shall be sent to such new address.
20. INDEMNIFICATION.
FWT shall defend, indemnify, and save harmless, AWS and it's operating units
and affiliates from and against all losses, costs, damage, expense, claims or
demands arising out of or caused in any manner by FWT's performance under this
Agreement, including all suits or actions of every kind or description brought
against AWS, and/or its operating units and affiliates either individually or
jointly with FWT for or on account or occasioned or caused by any act,
omission, or fault of FWT, FWT's employees, or agents, or others under FWT's
control. This indemnification shall not apply to the extent such losses, costs,
damages, expenses, claims or demands are attributable to the negligence or
willful misconduct of AWS and its operating units, affiliates and/or
subcontractors.
21. INFRINGEMENT.
The following terms apply to any infringement or claim of infringement of any
patent, trademark, copyright, trade secret or other proprietary interest based
on the manufacture, normal use or sale of any material furnished to AWS and its
operating units and affiliates hereunder or in contemplation hereof. FWT shall
indemnify AWS and its operating units and affiliates for any loss, damage,
expense, or
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liability that may result by reason of any such infringement or claim, except
where such infringement or claim arises solely from FWT's adherence to AWS's
and/or its operating units or affiliates written instructions or directions
which involve the use of merchandise or items other than (1) commercial
merchandise which is available on the open market or is the same as such
merchandise, or (2) items of FWT's origin, design or selection; and AWS and its
operating units and affiliates, as the case may be, shall so indemnify FWT for
sales to AWS and its operating units and affiliates in such excepted cases.
Each party shall defend or settle, at its own expense, any action or suit
against the other for which it is responsible hereunder. Each party shall
notify the other promptly of any claim of infringement for which the other is
responsible, and shall cooperate with the other in every reasonable way to
facilitate the defense of any such claim.
22. USE OF INFORMATION.
Any disclosure of confidential information between the parties to this
Agreement shall be subject the terms and conditions of the Nondisclosure
Agreement between AT&T Wireless Services, Inc. and FWT, Inc. dated August 1,
1996, which is hereby incorporated by reference.
23. ASSIGNMENT.
FWT may not assign this Agreement, in whole or in part, without AWS's prior
written consent, which consent will not be unreasonably withheld or delayed.
AWS may assign its rights hereunder to (a) any corporation resulting from any
merger, consolidation or other reorganization to which AWS is a party, (b) any
corporation, partnership, association or other person to which AWS may transfer
all or substantially all of the assets and business of AWS existing at such
time. AWS may assign its rights hereunder to any subsidiary of the AT&T
Corporation, provided that AWS obtains FWT's prior written consent, which will
not be unreasonably conditioned, withheld or delayed. All the terms and
provisions of this Agreement will be binding upon and inure to the benefit of
and be enforceable by the parties hereto and their respective successors and
permitted assigns.
24. RELATIONSHIP.
(See Attachment B)
25. PUBLICITY.
FWT agrees to submit to AWS all advertising, sales promotion, press releases
and other publicity matters relating to the Products furnished or to Services
performed by FWT under this Agreement wherein AWS's name, marks or the name or
xxxx of any AWS operating unit or affiliate is mentioned or language from which
the connection of said names or marks therewith may be inferred or implied; and
FWT further agrees not to publish or use such advertising, sales promotion,
press releases, or publicity matters without AWS's prior written approval.
26. CHOICE OF LAW.
The construction, interpretation, and performance of this Agreement shall be
governed by the laws of the State of Washington.
27. ENFORCEMENT.
AWS's failure at any time to enforce any of the provisions of this Agreement or
any right with respect thereto, or to exercise any option herein provided, will
in no way be construed to be a waiver of such provisions, rights, or options or
in any way to affect the validity of this contract. The exercise by AWS of any
right or options under the terms or covenants herein shall not preclude or
prejudice the exercising thereafter of the same or any other right hereunder.
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28. SEVERABILITY.
In the event that any one or more of the provisions contained herein shall for
any reason be held to be unenforceable in any respect under the laws of the
jurisdiction governing the entire Agreement, such unenforceability shall then
be construed as if such unenforceable provision or provisions had never been
contained herein.
29. INSURANCE.
FWT shall maintain, during the term hereof all insurance and/or bonds required
by law, including but not limited to; (1) Workmen's Compensation insurance as
prescribed by the law of the state in which the work is performed; (2)
employer's liability insurance with limits of at least $1,000,000 each
occurrence, and (3) comprehensive general liability insurance (including
product liability insurance), with total liability limits of at least
$2,000,000, and, if the use of automobiles is required, comprehensive
automobile liability insurance, each with limits of at least $1,000,000 for
bodily injury, including death, to any one person, and $1,000,000 on account of
any one occurrence, and $1,000,000 for each occurrence of property damage. AWS
shall be named as an additional insured party under such comprehensive general
liability insurance policy.
Certificates of such insurance shall be submitted to AWS upon AWS's request.
Certificates of insurance, with copies of the policies or other proof of
insurance shall be sent to AWS. No insurance required to be maintained pursuant
to this Agreement shall be canceled by FWT without giving at least ten days
prior written notification to AWS.
FWT shall also require FWT's subcontractors, if any, who may enter upon AWS's
premises to maintain similar insurance and to agree to furnish AWS, if
requested, certificates or adequate proof of such insurance. Certificates
furnished by FWT shall contain a clause stating that AWS is to be notified in
writing at least ten days prior to cancellation of, or any material change in,
the policy.
30. CONFLICTING PROVISIONS.
AWS shall not be bound by additional provisions or provisions at variance with
this Agreement which may appear in FWT's quotation, acknowledgment, invoice or
in any other communication from FWT to AWS, without AWS's prior written
consent.
31. NON-DISCRIMINATION AGREEMENT.
FWT shall maintain a non-discrimination compliance agreement and provide a copy
of such agreement to AWS upon request.
32. ORDER OF PRECEDENCE.
In the event of a conflict between the terms of this Agreement and its
Attachments, the order of precedence of the terms shall be as follows:
A. Agreement
B. Attachments B and C.
C. Attachment A.
D. Purchase Orders (except for prices)
33. ENTIRE AGREEMENT; CANCELLATION AND PRIOR AGREEMENTS.
This Agreement and its Attachments constitute the entire Agreement between AWS
and FWT with respect to the subject matter hereof and all prior oral or written
communications, understandings or agreements between the parties with respect
to such subject matter, including that certain agreement
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between the parties dated November 1, 1996, are hereby canceled and superseded
in their entirety. The parties acknowledge and agree that all claims arising
under such prior understandings and agreements shall survive, except that the
parties release and discharge one another for any claims arising from the
following:
1) Tonnage commitment shortfalls by AWS
2) Late delivery penalties owed by FWT to AWS-Central Region
3) Claims which became known prior to August 1, 1997, which have not yet
been disclosed to the other party
34. AMENDMENT.
This agreement shall not be amended or modified without specific written
provision to that effect, signed by both parties. No oral statement of any
person whomsoever shall, in any matter or degree, modify or otherwise affect
the terms and provisions of this Agreement.
IN WITNESS WHEREOF, AWS and FWT have caused this Agreement to be executed by
their duly authorized representatives as of the day and year first stated
above.
AT&T WIRELESS-SERVICES, INC. FWT INC.
By: /s/ XXXX X. XXXXXX By: /s/ XXX X. XXXXX
---------------------------- --------------------------------
Xxxx X. Xxxxxx, C.P.M. Xxx X. Xxxxx
Regional Supply Manager Vice President - Marketing and Sales
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ATTACHMENT A
AT&T WIRELESS SERVICES
GENERAL TERMS AND CONDITIONS
By signature of General Supply Agreement #ATTWS/FWT/1096, these GENERAL TERMS
AND CONDITIONS are agreed to this August __, 1997, by FWT Inc. ("FWT") and AT&T
Wireless Services, Inc. ("AWS"). FWT hereby acknowledges and agrees that these
General Terms and Conditions shall apply and are hereby incorporated into each
and every purchase order, sales order, request for service, or other agreement
between FWT and AWS under which FWT agrees to provide goods or services. Each
such order, request and agreement shall be referred to herein as a "Purchase
Order".
1. Independent Contractor. FWT acknowledges that its status
vis-a-vis AWS is that of an independent contractor, not an employee. FWT shall
be solely responsible for the operation of its business and the supervision and
compensation of its employees (including without limitation the payment of all
business, payroll, unemployment, property, and income taxes and workers
compensation payments). AWS shall not (a) have any right or obligation to
control or direct the results of or the means by which FWT performs its
services, (b) provide FWT with any employees, transportation, facilities,
equipment or supplies, or (c) reimburse FWT for any of its expenses.
2. Compliance with Laws. FWT shall comply with all applicable
federal, state and local laws, government orders and regulations in performing
any and all Purchase Orders, including compliance with all requirements of
Section 6, 7 and 12 of the Fair Labor Standards Act of 1938, as amended from
time to time and with all regulations and orders of the administrator of the
Wage and Hour Division issued under Section 14 as amended from time to time. On
request FWT shall furnish AWS certificates of compliance with all such laws,
orders and regulations. The parties agree that the contract provisions set
forth in: (1) Section 202 of the Executive Order 11246, dated September 24,
1965, pertaining to equal opportunity, nondiscriminatory employment practices,
(2) Section 60-2504 of the Affirmative Action Regulations for Veterans,
codified as 41 CFR 60-250, and adopted pursuant to the Veterans Readjustment
Act of 1974, and (3) Section 60-7414 of the Affirmative Action Regulations on
Handicapped Workers, codified as 41 CFR 60-741, relating to Section 503 of the
1973 Rehabilitation Act, are incorporated herein by reference, except to the
extent that the terms of said Regulations and Order are inapplicable to or
otherwise do not govern a particular Purchase Order or to the extent that a
particular Purchase Order may be exempt from the provisions of said Regulations
and Order by rules and regulations issued thereunder.
3. Acceptance. Commencement of performance pursuant to any
Purchase Order constitutes acceptance hereof by FWT.
4. Prices, Terms and Invoices. The prices for the equipment
and/or services ordered hereunder are those specified on the face of the
particular Purchase Order. No charges shall be made for shipping, unless
specified on the particular Purchase Order. Taxes shall be applied to all
orders, however, the tax amount will not be included on the Purchase Order.
Payment is contingent upon approval of the equipment and/or services by AWS.
Time and material invoices are payable only after audit by AWS. Terms of
payment for invoices submitted by FWT against PO's issued pursuant to this
agreement shall be Net 30. Due dates for the payment of invoices shall be
computed from the date of receipt of the invoice by Buyer.
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5. Packing, Marking and Shipping
a. Delivery shall be f.o.b. origin.
b. A packing slip shall accompany each shipment, enclosed in a
package marked "Packing Slip Inside." The Packing Slip and other shipping
documents shall bear the applicable Purchase Order number and shipping
destination.
6. Inspection. All equipment and services provided under any Purchase
Order shall be subject to inspection and testing by AWS to the extent
practicable at times and places including the period and place of manufacture;
if any such inspection or test is made on FWT's premises, FWT shall furnish
without additional charge reasonable facilities and assistance for the safety
and convenience of the persons conducting the test. If any equipment or
services are defective in material or workmanship, or otherwise not in
conformity with the requirements of any Purchase Order, AWS shall have the
right to reject such equipment or services, retain and correct them at FWT's
expense, or require their correction by FWT. Rejected equipment shall be
returned to FWT at FWT's risk and FWT shall pay AWS for all packing, handling
and transportation expenses incurred in connection with the rejected equipment.
Records of all inspection work by FWT shall be kept complete and available to
AWS during the performance of any and all Purchase Orders and for such longer
period as may be required by law.
7. Liens. All equipment to be delivered under any and all Purchase Orders
and all property to be returned to AWS shall be free and clear of any and all
liens and encumbrances whatsoever.
8. Use. The equipment and services contracted for in any Purchase Order
are to be for the use of AWS, its affiliated companies and/or its or their
suppliers. All equipment contracted for may be subjected to further processes
of manufacture, combined with any articles, or put to any use whatsoever, by
AWS, its affiliated companies or its or their suppliers, as it or they may
elect, and in no event shall any claim for royalty or other additional
compensation be made by FWT, by reason of such manufacture, combination or use.
9. AWS's Property. All property, if any, used by FWT but owned,
furnished, charged to, paid for, or provided by AWS, including but not limited
to materials, tools, dies, plates, jigs, patterns, fixtures, equipment and any
replacements thereof, shall be the property of AWS subject to removal and
inspection by AWS at any time without cost or expense to AWS. All such property
shall be used by FWT only for performance under any Purchase Orders and shall
be adequately insured for AWS's protection. FWT shall assume all liability for
and maintain and repair such property and return the same to AWS in good
condition, reasonable wear and tear excepted.
10. Excusable Delays.
a. Neither AWS nor FWT shall be liable for a failure to perform
hereunder arising from (1) acts of God or a public enemy, (2) acts of
the Government of the United States or any state or political
subdivision or any department or regulatory agency thereof or entity
created thereby, (3) acts of any person engaged in subversive
activity or sabotage, (4) fires, floods, explosions, or other
catastrophes, (5) epidemics and quarantine restrictions, (6) strikes,
slowdowns, lockouts or labor stoppages or disputes of any kind, (7)
freight embargoes, (8) unusually severe weather, (9) delays of a
supplier due to any of the above causes or events, or (10) causes or
events beyond the control and without the fault or negligence of AWS
or FWT in failing, to perform hereunder.
b. In the event of a failure by FWT to perform arising from any
of the causes or events set forth in subparagraph (a) of this
paragraph, AWS shall be entitled to obtain equipment or services
covered by all applicable Purchase Orders elsewhere for the duration
of such failure and to reduce, pro tanto the quantity or amount of
equipment or services ordered from FWT under all such Purchase Orders.
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11. Termination at Option of AWS.
a. Performance under any and all Purchase Orders may be terminated by
AWS at its option, in whole or in part at any time with written notice
to FWT, notwithstanding the existence with respect to FWT of any of
the causes or events specified in Paragraph 10 above.
b. After receipt of a notice of termination FWT shall, unless
otherwise directed by AWS, immediately terminate the performance of
all services and the manufacture and/or shipment of all equipment
under all outstanding Purchase Orders, and shall, unless otherwise
directed by AWS, (1) terminate all orders and subcontracts relating to
the performance of the work and settle all claims arising out of such
termination, subject to the approval or ratification of AWS; (2)
transfer title and deliver to AWS (i) all completed equipment which
conforms, in quality, to the requirements of all outstanding Purchase
Orders and does not exceed, in quantity, the amount authorized for
production by AWS, and (ii) all reasonable quantities (but not in
excess of amounts authorized by AWS) of work in process and materials
produced or acquired to perform hereunder which are of a type and
quality suitable for producing equipment which conforms, in quality,
to the requirements of the outstanding Purchase Orders and which
cannot reasonably be used by FWT in producing equipment for itself or
for its other customers; (3) take all action necessary to protect
property in FWT's possession in which AWS has or may acquire an
interest; and (4) submit to AWS promptly, but not later than three (3)
months from the effective date of termination, its termination claim,
in the form and with the certification prescribed by AWS; provided,
however, that in the event of failure of FWT to submit its termination
claim within such period, AWS may determine notwithstanding the
provisions of subparagraph (c) hereof, on the basis of information
available to it, the amount, if any, due FWT with respect to the
termination and such determination shall be final.
c. If the parties cannot by negotiation agree within a reasonable time
upon the amount of fair compensation due FWT for such termination,
AWS, in addition to making prompt payment of amounts due for equipment
delivered or services rendered prior to the effective date of
termination, will pay to FWT (without duplication) the actual costs
incurred by FWT which are properly allocable or apportionable under
recognized commercial accounting practices to the terminated portion
of this order, including the cost of discharging liabilities which are
so allocable or apportionable. Such costs shall exclude the cost of
discharging liabilities for parts, materials and services not received
by FWT before the effective date of termination. Payments made under
this subparagraph (c) shall not exceed the aggregate price specified
in Purchase Orders, less payments otherwise made or to be made.
d. With the consent of AWS, FWT may retain at an agreed price or sell
at an approved price any completed equipment, or any equipment,
materials, work in process or other things the cost of which is
allocable or apportionable to a Purchase Order under subparagraph (c)
above, and will credit or pay the amount so agreed or received as AWS
directs.
e. The provisions of this paragraph 11 shall not apply if this
Purchase Order is terminated by AWS for the default of FWT pursuant to
paragraph 12 hereof.
12. Termination for Default of FWT. Subject to paragraph 11 above,
whenever FWT (1) refuses or fails to make deliveries of the equipment or
perform services called for in any Purchase Order within the time specified in
the Purchase Order or in written instructions issued to FWT, or (2) otherwise
defaults in the performance of any Purchase Order, AWS may terminate such
Purchase Order, in whole or in part, effective ten (10) days after mailing of
notice of default, unless FWT shall, within such period, cure such default.
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13. Effect of Invalidity. The invalidity in whole or in part of any
condition of any Purchase Order shall not affect the validity of other
conditions.
14. Remedies. The remedies herein shall be cumulative, and in addition to
any other remedies available in law or equity. No waiver of a breach of any
provision of any Purchase Order shall constitute a waiver of any other breach
or of such provision.
15. Notice of Labor Disputes.
a. Whenever FWT has knowledge that any actual or potential labor
dispute is delaying, or threatens to delay the timely performance of any
Purchase Order, FWT shall immediately give notice thereof and all relevant
information to AWS.
b. FWT agrees to insert the substance of this clause, including
this paragraph (b), in any subcontract (including, any purchase order)
hereunder as to which a labor dispute may delay the timely performance of this
Purchase Order, except that each such subcontract shall provide that in the
event any actual or potential labor dispute is delaying or threatens to delay
timely performance, the subcontractor shall immediately notify its next higher
tier subcontractor, or FWT, as the case may be, of all relevant information.
16. Assignment. FWT hereby agrees that AWS may assign all or any portion
of its rights under these General Terms and Conditions to its local cellular,
PCS or paging affiliates, which affiliates shall be the purchasers of equipment
and/or services from FWT.
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ATTACHMENT B
1. BACKGROUND
The demand for monopoles has increased dramatically since May 1996. The
combination of an increased cellular build program and the aggressive network
development efforts of the A & B PCS licensees has resulted in monopole
shipment lead times of over twenty weeks. Moreover, the C through F licensees
have not begun their network development efforts in xxxxxxx; however, once
begun, they are certain to increase the demand and shipment lead times even
farther. The increased demand coupled with the long lead time required to build
additional monopole fabrication capacity means that there is not a quick
solution to bringing down shipment lead times. While FWT anticipated the change
in demand and began developing a new monopole production facility in February
1996, the market demand increased more quickly than anticipated; however, by
establishing a General Supply Agreement between AWS and FWT, both companies can
still meet their objectives.
2. OBJECTIVES
2.1 AWS
o Secure shorter lead times, ideally six to eight weeks.
o Secure monopole manufacturing capacity and associated steel supplies
to assure adequate monopole supply for AWS market areas.
o Develop a system that allows for a variety of structural designs.
o Provide the capability to deliver custom pole designs with very short
lead times from Black Inventory.
o Maintain competitive pricing
2.2 FWT
o Develop an alliance for a significant fabrication volume.
o Provide superior customer support and service as an incentive to
continue the alliance once the market demand ebbs.
o Form a relationship that provides global opportunities whereby the US
plant can serve other regions or the alliance agreement can be
replicated in other parts of the world.
3. APPROACH
Considering the objectives outlined above, the following approach to the
problem and opportunities was developed.
3.1 PRODUCT DESCRIPTION
This agreement specifically addresses FWT's provision of tapered, sleeve-fit,
galvanized or metalized, communications monopoles designed according to EIA-222
or applicable local building codes.
3.2 FWT AWS SUPPORT TEAM (FAST)
FWT will assemble an FWT AWS Support Team (FAST) to insure that FWT performance
targets are met. Specifically, FWT will dedicate: one engineer, one to two
draftspersons, one proposal developer, and one to two project managers. While
this team will be devoted exclusively to AWS monopole projects, the balance of
FWT's resources are available to shave off peak-demand loads. For example, FWT
has seven structural engineers on staff and a firm on retainer if the volume
requires additional engineering resources. Also, a significant software
development effort is under way to automate the engineering and fabrication
detailing steps.
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3.3 BLACK INVENTORY
AWS has the option of instituting a Black Pole inventory program. Upon request
from AWS, FWT shall fabricate Standard Designs (as described in the following
section) for Black Poles. Unless specifically requested by AWS, Standard
Designs will not be galvanized and wall penetrations will not be made (e.g.,
for line entrances or exists). Once in inventory, a maximum of three (3) Black
Inventory poles can be modified each day.
3.3.1 STANDARD DESIGNS
Standard Designs are those that have been identified by AWS as a Standard
Design at least six weeks prior to fabrication or a pole that has been
previously fabricated under this agreement (hereafter defined as an Archive
Design).
3.3.2 ARCHIVE DESIGNS
Once a design is fabricated by FWT it becomes an Archive Design for a period of
twelve months. If the design is not re-used within twelve months, it is no
longer considered an Archive Design. Archive Designs will be maintained on a
database by FWT. Design searches on the Archive Database shall be by AWS
region, structure height, design number, wind/ice load, and last fabrication
date.
3.3.3 BLACK POLE DESIGN
Upon request from AWS, Black Poles will be fabricated from Standard Designs or
Archive Designs.
3.3.4 STORAGE
Black Inventory will be held for a period of one year without charges. After
one year, AWS will be charged $100 per month per section.
3.4 DELIVERY COMMITMENT
The following are FWT's service commitments:
3.4.1 P.E. SEALED DESIGN DRAWINGS SHIPMENT
FWT shall ship P.E.-sealed structural drawings four to seven full business days
after the later of an order is received or FWT has full information associated
with the structure (e.g., antennas and antenna support structures are clearly
identified).
FWT shall ship P.E.-sealed foundation drawings four to seven full business days
after the later of an order is received or the soil report is received.
3.4.2 ANCHOR BOLTS SHIPMENT
Unless AWS requests a delay in shipping, anchor bolts and templates will be
shipped five to ten fall business days after the later of receiving an order or
receiving anchor bolt shipment information.
3.4.3 STRUCTURE SHIPMENT
Unless a delay in shipping is requested by AWS, the monopole structure will be
shipped no more than eight (8) weeks after the later of receiving the order or
complete design information, except for structures whose shaft diameter exceeds
seventy-two (72) inches, for which a specific Target Shipment Date will be
quoted at the time of the order. One additional week shall be allowed for
painted monopoles. The date established for shipment shall be known as the
Target Shipment Date. In the event that the structure is not available for
shipment on the Target Shipment Date, then AWS, in its sole discretion, may
impose a penalty on FWT of one hundred dollars ($100.00) per day for each day
that the structure is unavailable for shipment, except as provided in
Attachment A, Section 12.
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3.5 PRICING
3.5.1 PRICING PHILOSOPHY
FWT will continue to provide AWS with competitive prices. While AWS has deemed
FWT as their Primary Supplier, FWT must still strive to earn the orders with
competitive pricing, and service. The prices charged to AWS for comparable
structures, time frames, and volumes will, in all cases, be less than those
charged to other customers.
3.5.2 UNIT-BASED PRICING
FWT shall provide monopoles based on a pricing schedule that utilizes a
price-per-pound for the structure weight plus various attachments and services.
Structure Weight shall be defined as the galvanized weight of the shaft, top
plate, and base plate. Considering this definition the algorithm for
calculating the cost of the monopole is a maximum of $1.00/pound. The price
will include the galvanized monopole structure, anchor bolt templates, and
anchors. In addition to the structure cost, an additional charge shall apply
for items such as engineering, penetrations (e.g., exit ports), antenna
mounts/platforms, safety climb, step bolts, obstruction marking, and waveguide
bridges. In cases where the shaft diameter exceeds 72", the section or a
portion thereof shall be flame-spray metalized at an additional cost per pound
for the metalized section. See the Attachment C for a listing of the options
and option pricing.
3.5.3 BLACK INVENTORY POLE PRICING
FWT will invoice AWS for Black Inventory poles at the time the Black Inventory
pole structure is complete and placed in storage. The invoice price for the
Black Inventory pole will be based on a pricing schedule that utilizes a
price-per-pound for the ungalvanized weight of the shaft and base plate. The
algorithm for calculating the cost of the black inventory pole is a maximum of
$.80/pound. For Black Inventory modifications, a handling fee of $250 per
section shall apply for sections that are modified and a handling fee of $100
per section shall apply for unmodified sections. Also, the price for cutting
off the end of a section (hereafter referred to as Cutting Fee) shall be $3.00
per inch of circumference. The circumference is calculated as the diameter at
the cut line multiplied by 3.1416. The minimum fee is $125.
The price of the finished pole shall be calculated as follows: (the galvanized
finished weight of the structure multiplied by the price per pound plus the
base amount) less (the previously invoiced amount for the black structure).
For example, if the finished weight is 20,000 pounds and the previously
invoiced amount, based on the black weight, was $16,000, the amount due for the
structure would be $4,000 (calculated as follows: [(20,000 x $1.00) - $16,000].
Handling Fees, Cutting Fees, and Options would be added to the invoice as well.
3.5.4 PRICE CHANGES
3.5.4.1 PERIOD
Prices will, be reviewed once per quarter. If an adjustment is warranted, based
on changes in the price index (as described below), FWT and AWS agree to
negotiate a revision to the pricing algorithm and the newly established prices
shall become effective immediately on quotes prepared thereafter.
3.5.4.2 BASIS
The following indices shall serve as a baseline for negotiating price changes.
Both the index and the relative weighting are shown:
o 10% Primary Fabricated Structural Metals, 3441-P as shown in the
Producer Price Index
o 25% Zinc cash price as shown in the Wall Street Journal for high grade
zinc on the London Metal Exchange.
o 65% Xxxxxx Xxxxxx, 0000-000 as shown in the Producer Price Index
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3.6 QUOTE/ORDER/INVOICE PROCESS
3.6.1 QUOTING
3.6.1.1 REQUEST FOR QUOTE (RFQ)
AWS will forward a quote request to FAST. The request will be on a mutually
acceptable form developed by FWT which identifies all of the items required to
provide a complete quote (e.g., antenna height, wind/ice load, etc.). This
request will be made by AWS, in most cases, via e-mail. A facsimile shall serve
as a back-up in the event the e-mail system is not operational.
3.6.1.2 QUOTE TURNAROUND TIME
Quotations shall be returned within two business days of receipt of a complete
RFQ.
3.6.1.3 QUOTE DISTRIBUTION
A copy of the quotation shall be forwarded to the Regional Supply Manager and
the AAC. AWS agrees to treat quotes as confidential information per the FWT/AWS
confidentiality agreement.
3.6.2 ORDERING
3.6.2.1 PURCHASE ORDER
The purchase order shall be issued by AWS or AWS's agent or contractor and
reflect the following information: date issued, items purchased, item pricing,
payment terms, title transfer point, and shipment information.
3.6.2.1.1 DATE ISSUED
This shall serve as the date by which FWT's performance shall be measured. This
assumes that the date issued is also the date that FWT receives the purchase
order. To the extent possible in the future, FWT and AWS shall work to develop
an EDI system to better track purchase order origination and FWT performance.
3.6.2.1.2 ITEMS PURCHASED
The purchase order shall identify the items purchased by referencing the FWT
quote/design number and itemizing all optionally priced items as separate line
items.
3.6.2.1.3 TITLE TRANSFER POINT
In all cases, title is transferred ex-works, FWT Plant, Ft. Worth, Texas or
Houston, Texas.
3.6.2.1.4 INVOICE PRICE
The invoice price shall be consistent with the Purchase Order.
3.6.2.1.5 INVOICING
FWT will issue an invoice when the structure is shipped, a structure is
completed for Black Inventory, a Black Inventory Pole is modified and shipped,
or an order modification results in charges for items not used (e.g., design
drawings). While there may be other instances in which an invoice is issued,
these are the primary events that will generate an invoice.
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3.6.2.1.5.1 FREIGHT
FWT will ship loads with an AWS designated carrier. The charges will be either
direct-billed to AWS by the carrier or FWT will xxxx AWS for the direct-charges
plus fifteen percent (15%). An additional blocking and loading fee of $500/open
top container will apply to overseas shipments. Billing instructions for
freight will accompany the purchase order.
3.6.2.1.5.2 TAXES
AWS is not exempt from Texas Sales Tax. FWT will add sales taxes as an
additional line item on each invoice.
3.6.2.1.6 PAYMENT TERMS
Net 30 from the later of completing manufacture or the Target Shipment Date.
This shall include Black Inventory that will be invoiced after completing
fabrication. Payments can be made via check or wire transfer (which is FWT's
preference).
3.6.2.1.7 SHIPMENT INFORMATION
The purchase order should include shipping instructions for P.E.-sealed
drawings, anchor bolts, and structure. Instructions should include a physical
address and the desired shipping time frame. If the preferred shipment time
frame is according to this agreement, the instructions should show "Per
Agreement."
3.6.2.2 ORDER MODIFICATION AND CANCELLATION
Orders may be modified or canceled up to six weeks prior to the Target Shipment
Date. If an order is canceled or modified, AWS will be invoiced for items
designed, fabricated and/or shipped prior to the order modification or
cancellation, but in no case will the amount charged exceed the cost of the
drawings, anchor bolts, templates and applicable freight.
3.6.3 COMMUNICATIONS
3.6.3.1 ELECTRONIC INFORMATION TRANSFER AND STORAGE
Whenever possible under this agreement, both AWS and FWT will make every effort
to communicate electronically. E-mail will serve as the primary communications
medium for FAST and the Regional Supply Managers. This helps in tracking
service performance as well as allowing FAST to better meet AWS's needs. The
phone and fax will serve as back-up systems.
3.6.4 FWT
3.6.4.1 PRODUCT DESCRIPTIONS
FWT shall provide complete product description information on monopoles and
each of the options. The information will be in the form of CAD drawings which
outline key dimensional information (e.g., point-to-point separation of
antennas on platforms)
3.6.4.2 TRAINING/PLANT TOURS
FWT, at its expense, will train each of the five Regional Supply Managers on
the purchase of monopoles under this agreement. A review of the various reports
and their usage will be covered. Based on the Regional Supply Manager's
availability, the training would include a plant tour so that they can have a
mental picture of the fabrication process. This mental picture will facilitate
the FWT/AWS working relationship in particular when order modifications are
required.
FWT will provide plant tours and training, regarding FWT products to other AWS
employees on an as needed basis.
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3.6.5 REPORTING
3.6.5.1 ORDERS IN PROCESS
FWT will provide a report that details the orders currently logged for
fabrication. This report will provide information on the order date, AWS P.O.
number, FWT job number, date of shipment of the P.E.-sealed design drawings and
anchor bolts, and Target Shipment Date. Each Regional Supply Manager will have
password protected access to this report for monopoles ordered by their region.
The AAC will have access to a report that includes all regions.
3.6.5.2 BLACK INVENTORY REPORT
FWT will provide a report that identifies the structures held in Black
Inventory. The report will identify the available AWS designs and will be
accessible by the Regional Supply Managers and ACC.
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ATTACHMENT C
OPTION PRICING
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P.E. Sealed Monopole and Foundation Design (with or without Foundation Design) $1,100.00
P.E. Sealed Foundation Re-design for FWT Monopole $450.00
Flame-Spray Metalizing for Shafts greater than 72 inches (additional price per/pound) $.10/lb.
Penetrations:
Line exit ports (10" x 24") $500.00
Line entrance ports (5' x 7"), without cover plate $200.00
Hand-holes (5" x 7"), with cover plate $225.00
Xxxxxxx Hooks $12.00
Anchor Materials:
Anchor bolt, 18J x 7', with two nuts (top and bottom) $150.00
Additional anchor bolt nut $35.00
Anchor bolt template (top and bottom) $750.00
Cable-type safety climb (minimum $250.00) $4.00/ft.
Step bolts (bolt-in) $8.25/ft.
Waveguide bridge (2'W x 10'L x 10'H) with two posts & three trapeze $755.00
Waveguide bridge (2'W x 10'L x 10'H) with four posts & three trapeze $955.00
Antenna Platforms and Mounts:
Weld-on platform with service grating and handrails:
10' platform $2,600.00
12' platform $2,700.00
14' platform $2,800.00
16' platform $2,900.00
Weld-on Low-Profile platform with service grating and NO handrails:
10' platform $2,400.00
12' platform $2,500.00
14' platform $2,600.00
16' platform $2,700.00
Band-on Low-Profile platform with service grating and NO handrails:
10' platform $3,100.00
12' platform $3,200.00
14' platform $3,400.00
16' platform $3,600.00
Top-mounted Rotatable platform with service grating and handrails:
10' platform $3,200.00
12' platform $3,300.00
14' platform $3,400.00
16' platform $3,600.00
Top-mounted Rotatable Low-Profile platform with service grating and NO handrails:
10' platform $3,000.00
12' platform $3,100.00
14' platform $3,300.00
16' platform $3,500.00
6' Luminaire arms - Weld-on arm $375.00
6' Luminaire arms - Band-on arm $885.00
6' Sidearm - Weld-on arm $325.00
6' Sidearm - Band-on arm $885.00
4 1/2' OD dish mount - Weld-on $600.00
4 1/2' OD dish mount - Weld-on $875.00
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