CONFIDENTIAL TREATMENT REQUESTED
Confidential Portions of This Agreement Which Have been Redacted are Marked
with Brackets ("[***]"). The Omitted Material has been Filed Separately with The
Securities and Exchange Commission.
MASTER DESIGN BUILD AGREEMENT
THIS MASTER DESIGN BUILD AGREEMENT ("Agreement"), dated as of the ____ day
of ____________, 1999 ("Effective Date"), is made by and between Horizon
Personal Communications, Inc. ("Horizon") and SBA Towers, Inc., a Florida
corporation ("BTS Company").
WHEREAS, Horizon Telecom, Inc., Horizon and SBA have entered into an Asset
Purchase Agreement ("APA") whereby SBA will purchase certain telecommunications
tower sites from Horizon, and Horizon and SBA have entered into or have agreed
to enter into a Master Site Agreement ("MSX"), and a Site Development Agreement
("Site Development Agreement"); and
WHEREAS, Horizon is in the business of providing wireless
telecommunications services; and
WHEREAS, BTS Company is in the business of erecting, owning and leasing
tower facilities for equipment used in providing such services; and
WHEREAS, Horizon desires to use BTS Company's services to identify,
evaluate, and acquire sites for such tower facilities; and
WHEREAS, BTS Company desires to construct a network of such tower
facilities within Horizon's service areas in a manner that will coordinate with
Horizon's needs for tower facilities; and
WHEREAS, the parties desire that in most cases a site identified by the
procedures set forth herein will result in a tower facility constructed by BTS
Company and leased to Horizon for the installation and operation of its
equipment; and
WHEREAS, this Agreement sets forth the manner in which Horizon will
identify the general location of potential sites, BTS Company will evaluate and
make recommendations as to specific sites and Horizon will lease space on any
such site for the installation and operation of its equipment pursuant to this
Agreement.
NOW, THEREFORE, for and in consideration of the mutual promises set forth
herein, the parties hereto agree as follows:
1. RELATIONSHIP OF PARTIES
1.1 INDEPENDENT CONTRACTOR RELATIONSHIP. The parties intend by this
Agreement to establish an independent contractor relationship. Neither party nor
their employees shall be agents or legal representatives of the other party for
any purpose. Neither party shall have the authority to act for, bind, or commit
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the other party. BTS Company and Horizon agree that this Agreement does not
establish or create a relationship of employer-employee, principal-agent, or a
franchise, joint venture, or partnership for any purpose whatsoever.
1.2 CONTRACTS WITH AFFILIATES. BTS Company may contract with any Affiliate
(as hereinafter defined) of BTS Company to provide goods or services beyond
those which its employees would perform, if it deems the same to be necessary or
advisable for development and/or construction of the Sites.
1.3 LANDLORD AND TENANT RELATIONSHIP. BTS Company and Horizon shall execute
contemporaneously with the execution of this Agreement, the MSA which governs
the relationship of BTS Company, as landlord, and Horizon, as tenant, on those
BTS Sites which are accepted by Horizon pursuant to Section 2.7(b) of this
Agreement. A copy of the MSA is attached hereto as Exhibit "A."
1.4 EXCLUSIVITY. During the term of this Agreement, BTS Company shall be
the exclusive build-to-suit, site acquisition, line and antenna installation,
and construction company for wireless telecommunications tower sites for Horizon
and its Affiliates in Region 1 and Region 2 (as those terms are defined in the
MSA and the Site Development Agreement which is executed simultaneously
herewith). For purposes of this Agreement, "Affiliates" with respect to either
party, shall mean companies which control, are controlled by, or under common
control with that party. For purposes of this Agreement, the word "control"
shall mean the ownership, directly or indirectly, of the power to direct or
cause the direction of the management and policies of an entity, or the power to
veto major policy decisions of any such entity, whether through the ownership of
voting securities, by contract or otherwise. During the term of this Agreement
Horizon shall not engage any third party or Affiliate directly or indirectly to
perform build-to-suit site acquisition, construction, or equipment installation
services described in this Agreement and will not enter into any discussions
with any third party or Affiliate concerning, or furnish any information
relating to such services to any third party or Affiliate, for the purpose of
considering, soliciting or inducing any offer by such third party.
Notwithstanding the foregoing, in the event that Horizon and BTS Company do not
agree upon the payment amount for a CMS Site, Horizon shall be entitled to
utilize a different contractor or subcontractor or its own personnel for
construction services. In the event that Horizon elects to utilize a different
contractor or subcontractor as provided herein, Horizon shall first offer BTS
Company the right to perform such services on the same terms and conditions as
offered by the contractor or subcontractor.
II. SITE ACQUISITION SERVICES.
2.1 SITE ACQUISITION SERVICES.
(a) Horizon shall establish small geographic areas within which a cell
site or transmission tower shall be located, based on the network grid's RF
design (a "Search Ring"). For each Search Ring, Horizon shall provide (i)
minimum tower specifications, (ii) desired mounting height, (iii) a description
of the equipment that Horizon intends to put on the tower, and
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[***] - CONFIDENTIAL TREATMENT REQUESTED
(iv) any other technical data necessary to permit SBA to effectively identify
the candidate sites that meet Horizon's needs. Horizon will provide to BTS
Company its System network grid, with the established Search Rings overlaid
thereon. Horizon will, from time to time, assign Search Rings to BTS Company.
BTS Company shall provide the personnel and facilities which are necessary to
locate and lease or license existing towers, buildings or other structures by
Horizon to be used for the construction and installation of Horizon's equipment
("Collocation Sites") or unimproved real property suitable for the construction
and installation of a communications tower ("Tower") and related facilities by
BTS Company ("BTS Site"). As used herein, "Sites" shall refer to both
Collocation Sites and BTS Sites, where appropriate. The Site Acquisition
Services are more particularly described in and shall be performed by BTS
Company in accordance with the scope of work attached hereto as Schedule "A"
which is incorporated by referenced herein ("Site Acquisition Services"). BTS
Company shall be entitled to compensation from Horizon for the Site Acquisition
Services as set forth on Schedule "C".
(b) Upon its receipt of a Search Ring designated hereunder by Horizon,
BTS Company shall promptly, diligently and professionally perform the Site
Acquisition Services with respect to such Search Ring. BTS Company shall perform
the Site Acquisition Services in accordance with this Agreement, including,
without limitation, the objectives and procedures set forth in Schedule "A"
("Objectives and Procedures"). Provided that Horizon does not materially
increase BTS Company's duties or impair BTS Company's rights hereunder, Horizon
shall have the right from time to time upon written notice to BTS Company to
adjust, modify or supplement the Objectives and Procedures and the form of
documents to be generated or provided by BTS Company pursuant thereto.
(c) Except as expressly authorized in this Agreement or otherwise
expressly authorized by Horizon in writing, BTS Company shall provide all labor,
equipment, material and supplies necessary or appropriate to perform Site
Acquisition Services. In the event that BTS Company elects to subcontract any
Site Acquisition Services, BTS Company shall obtain Horizon's prior written
consent to utilize such subcontractors, which consent shall not be unreasonably
conditioned, delayed or withheld.
(d) During the performance of Site Acquisition Services with respect
to any designated Search Ring, BTS Company shall at all times apprise Horizon of
any expressed opposition, protest, litigation or other efforts, whether by an
individual, group, neighborhood association or other organization, to restrict,
alter or prohibit the construction, installation or operation of any structure,
structures or other facilities that Horizon or BTS Company proposes to construct
or operate on any Site within such Search Ring.
2.2 WITHDRAWAL OF SITE. In the event Horizon elects to withdraw a
Collocation Site at any time or a BTS Site pursuant to the terms of this
Agreement Horizon shall give BTS Company notice of such withdrawal and shall pay
BTS Company [***] of the milestone installment that would be due if the work
currently in progress was completed, [***] of the reimbursable costs which were
incurred prior to the date on which BTS Company receives notice of the withdrawn
Site, and [***] of all other amounts due hereunder for work completed on the
Site as of the date BTS Company receives Horizon's withdrawal notice and
substitute the withdrawn Site with an alternative site within sixty (60) days
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[***] - CONFIDENTIAL TREATMENT REQUESTED
("Alternative Site"), if available. In the event that a withdrawn Site is a BTS
Site, Horizon shall pay BTS Company for Site Acquisition Services in connection
with such Site as set forth in Schedule "C" attached hereto.
2.3 SEARCH RINGS DESIGN. Horizon shall have the right at any time in its
sole and absolute discretion to expand or reconfigure a previously designated
Search Ring. In the event that Horizon redesigns a search ring beyond 0.5 miles
of an urban or suburban Site or 1.5 miles of a rural Site for which BTS Company
has begun but not yet completed all Site Acquisition Services, then Horizon
shall pay BTS Company [***] for all Site Acquisition Services completed at the
time that the notice of redesign is received by BTS Company, [***] of the
reimbursable costs which were incurred prior to the date on which BTS Company
receives notice of such reconfigured Search Ring, and [***] of the milestone
installment that would be due if the work currently in progress was completed.
In the event that such Site was a BTS Site, Horizon shall pay BTS Company for
such Site Acquisition Services as set forth on Schedule "C". For all Site
Acquisition Services rendered for the redesigned search ring, in the event that
the Site in the redesigned Search Ring is not a BTS Site, Horizon shall pay BTS
Company an additional [***] of the milestone installments due for all milestone
installments to be performed and [***] of all milestone installments to be
performed for the first time and [***] of the reimbursable costs which are
incurred. Horizon agrees not to develop any site within any redesigned or
withdrawn Search Rings as a tower site and further agrees not to transfer the
associated Work Product to any third party, including Affiliates.
2.4 TERM OF SITE ACQUISITION SERVICES AGREEMENT. The term of this Agreement
(the "Site Acquisition Term") shall commence on the date of this Agreement and
shall expire on December 31, 2001.
(a) This Agreement may be terminated as to any particular Search Ring
upon written notice by either party following the other party's breach of an
obligation or covenant on such party's part to be performed with respect to that
Search Ring, which breach is not cured within thirty (30) days after the
breaching party's receipt of written notice; provided, however, that so long as
the defaulting party commenced appropriate curative action within such thirty
(30) day period, and thereafter diligently prosecutes such cure to completion as
promptly as possible, the cure period will be extended until the cure is
completed. If a party fails to cure a breach within this thirty (30) day period,
as it may be extended, the party will be in default under this Agreement as it
applies to the applicable Search Ring; and
(b) Neither a termination nor the expiration of this Agreement shall
affect:
(i) the term of the MSA or any SLA, as that term is defined
herein, which has been entered into by the parties prior to the date of
termination of this Agreement, which shall continue in accordance with its terms
and conditions;
(ii) the terms of this Agreement that apply to any SLA which has
been entered into by the parties prior to the date of termination of this
Agreement;
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[***] - CONFIDENTIAL TREATMENT REQUESTED
(iii) any duties or obligations for payment or performance that
are or become owing hereunder prior to the effective date of such termination;
(iv) the terms of this Agreement that apply to any Search Ring
which was issued prior to the date of termination of this Agreement; or
(v) any other duties or obligations that expressly survive the
termination or expiration hereof.
(c) A default regarding one Search Ring shall not constitute a default
under this Agreement; however, a default under the greater of: (1) [***] Search
Rings; or (2) [***] or more of the Search Rings which have been issued pursuant
to this Agreement, shall constitute a default under every Search Ring and a
default under this Agreement. In the event of such a default, Horizon shall be
entitled to terminate the services of BTS Company and complete or engage a third
party to complete BTS Company's responsibilities under this Agreement pursuant
to the Plans and Specifications (as hereinafter defined) provided by BTS
Company. In such event, Horizon shall convey the Tower Facilities (as
hereinafter defined) and any site development materials including ground leases
and title, environmental and geotechnical reports to BTS Company upon
completion, lien free, and BTS Company shall reimburse Horizon for the
reasonable costs of completing its responsibilities and pay Horizon the
applicable site development fee set forth in the Site Development Agreement (as
hereinafter defined).
2.5 GROUND LEASES. The acquisition of BTS Sites by BTS Company pursuant to
this Agreement shall be accomplished using a lease agreement in substantially
the same form as the Option and Lease Agreement which is attached hereto as
Exhibit "B" (hereafter the "Ground Lease"). In no event shall BTS Company agree
to material modifications to the provisions set forth in paragraph 35 of the
Ground Lease without Horizon's prior written approval. The acquisition of
Collocation Sites by BTS Company pursuant to this Agreement shall be
accomplished using a lease agreement which Horizon shall provide to BTS Company
or on such other form which Horizon may, in its sole discretion, approve.
2.6. ACCEPTANCE AND REJECTION OF COLLOCATION SITES. Horizon may at any time
in its sole and absolute discretion accept or reject any proposed Collocation
Site. Without limiting the foregoing, Horizon may withdraw its prior acceptance
of a Collocation Site and thereby reject such Collocation Site. A withdrawal or
a rejection by Horizon of a Collocation Site shall not affect its obligation for
fees earned through the date of termination for Site Acquisition Services as
more particularly described in Section 2.2.
2.7 ACCEPTANCE AND REJECTION OF BTS SITES; EXECUTION AND DELIVERY OF SLAS.
(a) A BTS Site shall be deemed to be an accepted BTS Site from and
after the date that the Candidate Site which corresponds to the BTS Site has
been approved by Horizon pursuant to Section 2(a) of Schedule A and shall
continue to be deemed an accepted BTS Site unless and until Horizon rejects the
BTS Site pursuant to section 2.7(b) hereof.
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(b) Horizon may at any time prior to the parties' execution and
delivery of an SLA corresponding thereto, and in Horizon's sole and absolute
discretion, reject any BTS Site. In the case of a BIS Site that is accepted by
Horizon, the following shall apply:
(i) BTS Company shall continue the diligent, thorough and
professional prosecution of Site Acquisition Services (including the completion
of Ground Lease negotiations and required zoning, land use and permitting
matters) necessary for the construction of a communications tower and related
facilities consistent with the criteria theretofore identified by Horizon;
(ii) Subject to Section 2.7(b)(iii) below, BTS Company and
Horizon shall prepare and finalize the SLA (and exhibits thereto) applicable to
such BTS Site;
(iii) Within thirty (30) days following BTS Company's receipt of
all necessary zoning or other land use permits or approvals applicable to the
improvements to be constructed by BTS Company on the BTS Site and the completion
of Site Acquisition Services in accordance with the Objectives and Procedures,
but subject to Section 2.7(b)(iv) below, Horizon and BTS Company shall execute
and deliver the SLA applicable thereto. Unless Horizon rejects the applicable
BTS Site within thirty (30) days following notice by BTS Company of BTS
Company's receipt of all necessary zoning or other land use permits or approvals
applicable to the landlord improvements to be constructed by BTS Company on the
BTS Site and BTS Company's completion of Site Acquisition Services in accordance
with the Objectives and Procedures, BTS Company shall be unconditionally
obligated to enter into the SLA with respect thereto upon receipt of the
foregoing permits and approvals, and shall thereafter perform its obligations
thereunder in accordance with the SLA and this Agreement. Notwithstanding any
provision of this Agreement to the contrary, in the event that Horizon neither
accepts nor rejects the BTS Site within thirty days as provided herein, BTS
Company may, at BTS Company's sole option either (1) deem the BTS Site approved
(in which event BTS Company shall be entitled to compel Horizon to execute a SLA
with respect to the BTS Site) or (2) deem the BTS Site to be denied and make
demand on Horizon for payment of the fees earned for Site Acquisition Services.
(iv) Horizon may in its sole and absolute discretion withdraw its
prior acceptance of a BTS Site, and thereby reject said BTS Site, at any time
prior to the BTS Company parties' execution and delivery of the SLA for such BTS
Site.
(c) In the event of a rejection by Horizon of a BTS Site, including a
rejection after a prior acceptance thereof as described above in Section 2.7(b)
hereof, Horizon's only obligation for such BTS Site shall be for the payment of
Site Acquisition Services incurred prior to such rejection with respect to the
Search Ring containing such BTS Site in accordance with Section 2.2. In such
event, Horizon agrees not to develop the rejected BTS Site as a tower site and
further agrees not to transfer the associated Work Product to any third party,
including Affiliates.
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(d) In the event of a rejection by Horizon of a BTS Site, BTS Company
may elect to forego the compensation set forth in Section 2.2 and retain the
Work Product. In such event, Horizon shall have the right, but not the
obligation, for a period of one (1) year following the construction of a tower
on such Site to enter into an SLA for such Site pursuant to the MSA as if such
Site were constructed as an accepted BTS Site; provided, however, that Horizon
shall not be entitled to compensation for such Site under the Site Development
Agreement.
(e) This Section 2.7 shall not be deemed to limit or restrict any
rights of termination of a SLA as expressly set forth therein. Horizon's rights
of rejection with respect to a BTS Site contained in this Section 2.7 shall be
in addition to, and not in lieu of, any SLA termination rights.
(f) In the event that BTS Company's due diligence investigation of a
BTS Site reveals any defect in such Site which BTS Company reasonably believes
would materially adversely affect BTS Company's multi-tenant use or ownership of
such Site, BTS Company shall be entitled to reject such Site upon notice to
Horizon. In such event, Horizon shall have the right to designate another
candidate site as the preferred candidate. BTS Company shall bear all costs
associated with Site Acquisition Activities and all costs associated with the
due diligence investigation, zoning, and permitting of such Site.
2.8 CONTINUED PERFORMANCE OF SITE ACQUISITION SERVICES FOLLOWING SITE
ACCEPTANCE OR REJECTION. Unless otherwise notified by Horizon, BTS Company
shall:
(a) Following Horizon's acceptance of any Site, continue to perform
Site Acquisition Services with respect to such accepted Site in accordance with
this Agreement including, without limitation, the Objectives and Procedures; and
(b) Following Horizon's rejection of any Site (including a rejection
after Horizon's prior acceptance thereof), continue to perform Site Acquisition
Services with respect to the Search Ring pertaining thereto (including a
modified Search Ring as described above in Section 2.3 hereof) in accordance
with the terms and conditions of this Agreement, including, without limitation,
the Objectives and Procedures.
2.9 NO CONFLICTING OBLIGATIONS.
(a) Neither BT'S Company nor any Affiliate of BTS Company shall
hereafter during the Site Acquisition Term enter into any agreement, contract or
other arrangement with any Competitor (For purposes of this Agreement
"Competitor" shall mean an entity whose business includes the provision of
wireless telecommunications services to the public) pursuant to which BTS
Company or any Affiliate of BTS Company agrees to provide to or on behalf of
such Competitor site acquisition services that: (i) may result in the leasing
(or other acquisition) of real property and the construction thereon by BTS
Company or such Affiliate of a wireless communications facility designed to meet
such Competitor's specifications and (ii) affect or may affect any real property
located within a Search Ring. BTS Company shall provide to Horizon during the
Site Acquisition Term BTS Company's primary duty of loyalty and professionalism
in the
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performance within the geographic area of Site Acquisition Services hereunder.
BTS Company shall not perform, or undertake to perform, any services that would
conflict with BTS Company's loyal, professional and diligent performance of its
duties hereunder. The foregoing provisions of this Section 2.9(a) shall not
apply if BTS Company notifies Horizon of a pre-existing conflict upon BTS
Company's receipt of a Search Ring, nor will it apply to a Search Ring after BTS
Company has completed construction of a BTS Site within such Search Ring.
(b) In the course of performing Site Acquisition Services or otherwise
in conducting its activities under or with respect to this Agreement or any SLA,
BTS Company shall not publish or distribute any materials or documentation using
Horizon's name without Horizon's express prior written permission specifically
relating to such use; provided, however, that BTS Company shall be entitled to
utilize Horizon's name where reasonably necessary to facilitate zoning and other
governmental approvals.
2.10 COMPLIANCE WITH LAWS. BTS Company represents and warrants that it
shall: (a) comply with all federal, state and local laws, regulations and
ordinances with respect to its performance of the Site Acquisition Services; (b)
file all reports relating to the Site Acquisition Services and required under
applicable law (including, without limitation, tax returns); (c) pay all filing
fees and federal state and local taxes applicable to BTS Company's business as
the same shall become due; and (d) pay all amounts required under local, state
and federal workers' compensation, disability benefit, unemployment insurance,
and other employee benefit laws and regulations when due. BTS Company shall
provide Horizon with such documents and other supporting materials as Horizon
may reasonably request to evidence BTS Company's continuing compliance with this
Section 2. 10.
2.11 INSURANCE. BTS Company and Horizon shall each maintain in effect,
without interruption, on an annual basis, during the term of this Agreement the
following insurance policies:
(a) Commercial General Liability (Bodily Injury and Property Damage).
Insurance coverage with endorsement evidencing coverage for contractual
liability. The limits of this insurance shall not be less than:
(i) Each Occurrence Limit $1,000,000
(ii) General Aggregate Limit $2,000,000
(b) Comprehensive Automobile Liability insurance covering the
ownership, operation and maintenance of allowed, non-owed, and hired motor
vehicles, in limits not less than $1,000,000 for bodily injury and property
damage per occurrence.
(c) Worker's Compensation Insurance with statutory limits and
Employer's Liability Insurance with limits of not less than $ 1,000,00 for each
accident.
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(d) Professional Liability (errors and omissions) insurance of not
less than $1,000,000 for each occurrence, with endorsement evidencing coverage
for contractual liability.
(e) All foregoing insurance shall provide for an effective date no
later than the Effective Date of this Agreement. Horizon and BTS Company agrees
to maintain such coverage in effect without interruption on an annual basis for
so long as this Agreement is in effect. Horizon shall be included as an
additional insured on BTS Company's Commercial General Liability insurance, and
BTS Company shall be included as an additional insured on Horizon's Commercial
General Liability insurance. Horizon and BTS Company agree to obtain such
insurance from nationally recognized carriers at commercially reasonable rates.
Horizon's and BTS Company's obligations under this Agreement, including its
indemnification obligations under Section 2.12, will not be affected by
obtaining or the failure to obtain any insurance coverage required under this
Section 2.11.
(f) Horizon and BTS Company shall each provide the other with
Certificates of Insurance from its insurance agent or broker or insurance
company evidencing the above coverage and limits.
(g) All insurance policies required to be maintained hereunder shall
be issued by companies that hold a current rating of not less than "A",
according to Best Key Rating Guide, unless this requirement is expressly waived
in writing by the other party.
2.12 INDEMNIFICATION. The following indemnities shall survive the
expiration or termination of this Agreement:
(a) By Horizon. Horizon shall indemnify and hold harmless BTS Company,
its Affiliates, directors, officers, shareholders, agents, and employees thereof
from and against any fine, penalty, loss, cost, damage, injury, claim, expense
(including reasonable attorney and other professional fees and costs and all
reasonable fees and costs associated with enforcing this indemnification), or
liability incurred by BTS Company as the result of any act, error, omission,
non-performance by negligence, or wrongful act of Horizon arising directly out
of the performance of this Agreement, including any election by Horizon to
pursue certain rights under this Agreement.
(b) By BTS Company. BTS Company shall indemnify and hold harmless
Horizon, its Affiliates, directors, officers, shareholders, agents, and
employees thereof from and against any fine, penalty, loss, cost damage, injury,
claim, expense (including reasonable attorney and other professional fees and
costs and all reasonable fees and costs associated with enforcing this
indemnification), or liability incurred by Horizon as the result of any act,
error, omission, non-performance by negligence, or wrongful act of BTS Company
arising directly out of the performance of this Agreement, including any
election by BTS Company to pursue certain rights under this Agreement.
(c) Notwithstanding anything to the contrary contained in this Section
2.12, the indemnity obligations of either party hereto will not apply to any
injury, loss, damage, liability, penalty or obligation (or any claim in
respect of the foregoing) resulting from the negligence or intentional
misconduct of the other party hereto or such of such other party's agents,
employees or contractors. To the fullest extent permitted by law, all claims
against the other party for lost profits or earnings or other indirect or
consequential damages otherwise recoverable under applicable law as a result of
the breach of this Agreement or otherwise pursuant to the foregoing indemnity
provisions are hereby waived by the aggrieved party.
2.13 ASSIGNMENT AND SUBLEASING. BTS Company may not assign this Agreement,
in whole or in part, without Horizon's prior written consent except as
collateral in connection with BTS Company's financing. BTS Company may, however,
subject to the terms of the MSA, sublease any particular Site to another entity.
Horizon may assign all or a portion of its rights hereunder to: (a) any
corporation resulting from any merger, consolidation or other reorganization to
which Horizon is a party; (b) any corporation, partnership, association or other
person to which Horizon transfers all or substantially all of the assets and
business of Horizon existing at such time; or (c) any Affiliate of Horizon;
provided, however, that in the event of an assignment, Horizon shall remain
liable for its obligations hereunder. All the terms and provisions of this
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the parties hereto and their respective successors and permitted assigns.
III. CONSTRUCTION, CONSTRUCTION MANAGEMENT AND PROGRAM MANAGEMENT SERVICES
3.1 CONSTRUCTION AND CONSTRUCTION MANAGEMENT. BTS Company shall perform the
services set forth on Schedule "B" attached hereto (all of which shall be
hereinafter referred to collectively as the "Construction Management Services")
for Horizon, for each site chosen within each of the Search Rings assigned. All
sites for which BTS Company will perform Construction Management Services shall
hereinafter be referred to as the "CMS Sites."
3.2 PROGRAM MANAGEMENT SERVICES. In connection with, and as a tracking and
indexing mechanism for its provision of Site Acquisition and Construction
Management Services pursuant to this Agreement, BTS Company shall develop,
implement and maintain a deployment plan which tracks all activities and costs
associated with the performance of Site Acquisition Services and Construction
Management Services for each Site in accordance with the following procedures:
(a) BTS Company shall develop and implement a quality assurance
program, which ensures that all activities are performed to such quality
standards as may be established from time to time by Sprint Spectrum, L.P.
(b) BTS Company shall develop and implement comprehensive reporting
mechanisms so that detailed site progress is tracked on a weekly basis, and
complete reports are provided when required by Horizon, not less frequently than
once per week.
(c) BTS Company shall develop and implement a comprehensive filing
system that ensures that all relevant site information is organized and
available. BTS Company shall seek to use electronic means whenever available.
BTS Company shall ensure the physical security of the filing system.
10
(d) BTS Company shall manage and coordinate interaction among site
acquisition, construction, management, and the A&E firm.
(e) BTS Company shall manage and coordinate interactions between the
infrastructure development staff (site acquisition and construction management)
and other disciplines involved in the system deployment (e.g., RF engineering,
network engineering, marketing).
IV. DESIGN AND CONSTRUCTION OF
WIRELESS COMMUNICATIONS FACILITIES
4.1 APPROVAL OF PLANS AND SPECIFICATIONS. BTS Company shall be responsible
for constructing the tower platforms, ice bridges, towers, fencing, grounding
systems, power and telephone connections to a central demarcation point within
the tower compound, and a concrete equipment pad as specified by site diagrams
for Horizon's equipment and battery backup ("Tower Facilities"). BTS Company
shall prepare and deliver to Horizon for its approval three copies of prototype,
standard plans ("Plans") and construction specifications ("Specifications") for
the construction of prototype Tower Facilities. The Plans and Specifications
shall be delivered to Horizon at least fourteen (14) business days prior to
obtaining the building permit on a Site. Within ten (10) days after receipt of
the Plans and Specifications, Horizon shall either approve such Plans and
Specifications or deliver to BTS Company detailed written objections thereto.
Horizon shall approve the Plans and Specifications if they meet the minimum
specifications set forth by Horizon in its Search Ring; provided, however, that
Horizon shall not be required to approve the Plans and Specifications if BTS
Company's Plans and Specifications contemplate tower height or loading in excess
of what was contemplated in Horizon's Search Ring minimum specifications, and
such excess would cause a material delay in BTS Company obtaining governmental
approvals with respect to the applicable Site, and such delay would materially
delay Horizon's anticipated installation date for its Equipment on such Site.
4.2 CHANGE ORDERS. Horizon shall have the right to issue reasonable change
orders to BTS Company on any given Site provided that such changes are tendered
to BTS Company in writing thirty (30) days prior to the submittal of the
applicable building permit application for the Tower Facilities which are
affected by the change order and further provided that Horizon pays the increase
in the cost of construction of the Tower Facilities attributable to such change
orders.
4.3 DEFINITION OF CONSTRUCTION COSTS. As used herein, Construction Costs
shall mean those costs which are the responsibility of BTS Company under this
Agreement and which shall include the costs of materials and labor used in the
construction of the Tower Facilities, payments made to contractors and
subcontractors performing construction work in connection with the Tower
Facilities including but not limited to the cost of materials, labor, expenses
associated with the lease of equipment used in construction, the cost of any
11
tower lighting system, the cost of all site work required for the property or
the easement, the cost incurred in extending utilities to the Property including
the cost incurred in obtaining any grants of easements for ingress, egress or
utilities over real property owned by persons or entities other than the prime
lessor, supplies, reasonable travel expenses, cost of overhead incurred by
contractors in the performance of this Agreement fees for building permits,
licenses and inspections, fees or assessments imposed by local, state or federal
governmental entities including but not limited to the FCC and FAA, insurance
premiums paid by BTS Company during the construction period, recording fees and
filing fees, fees and payments on construction, interim or permanent financing,
mortgage brokerage fees, fees of engineers, surveyors, architects, attorneys and
others providing professional services, brokerage commissions, and premiums for
contractor's faithful performance and or mechanic's ▇▇▇▇ ▇▇▇▇▇ ("Construction
Costs"). Construction Costs shall not include the cost of Horizon's Equipment
(as used herein, "Horizon's Equipment" shall mean all antennas, microwave
antennas, hardware and lines, GPS antennas, hardware and lines, coaxial cable,
jumpers, connectors, waterproof kits, hoisting grips, mounting brackets,
generators, battery backup kits, BTS equipment and BTS mounting platforms or
equipment) or any costs associated with the delivery or installation of
Horizon's Equipment. Horizon shall be solely responsible for purchasing
Horizon's Equipment, the delivery and installation of Horizon's Equipment and
the costs associated with these goods and services.
[***] - CONFIDENTIAL TREATMENT REQUESTED
4.4 COVENANT TO CONSTRUCT. BTS Company shall act with due diligence to
construct the Tower Facilities at minimum in accordance with Horizon's minimum
specifications. BTS Company shall use due diligence to obtain all necessary
permits and approval of the Plans from all applicable governmental agencies. BTS
Company will install Horizon's Equipment to agreed upon specifications, perform
sweep tests and document results meeting or exceeding Horizon's standards and
set Horizon's BTS equipment and connect to grounding system and provide
resistance to ground tests yielding 5 ohms or less for a fee which is defined in
Schedule "C" of this Agreement. BTS Company shall provide conduit for electrical
and telephone connections from central demarcation point to Horizon's BTS
Equipment location and will pull coaxial cables into the "doghouse" and install
jumpers. Horizon shall be responsible for connecting power, telephone and
coaxial cable jumpers to Horizon's BTS equipment. BTS Company will provide
warehouse space for storage and staging of Horizon and BTS Company's Equipment.
4.5. COMMENCEMENT OF CONSTRUCTION. BTS Company shall make reasonable
and diligent efforts to complete the construction of an individual Tower
Facility within sixty (60) days after Horizon executes an SLA for the Site upon
which the Tower Facilities are to be constructed. BTS Company shall have no
obligation to commence construction of the Tower Facility at a Site unless and
until an SLA has been properly executed by Horizon for that Site. In the event
that BTS Company reasonably anticipates that the construction of a particular
Tower Facility at a Site cannot be completed within sixty (60) days after
execution of an SLA, BTS Company and Horizon shall act reasonably in agreeing
upon an alternate number of days which will be required to complete
construction. In the event that BTS Company fails to complete the construction
of any Tower Facility within thirty (30) days of the date on which such Site was
scheduled to be completed (as such scheduled completion date may have been
extended pursuant to the previous sentence), BTS Company shall pay to Horizon as
liquidated damages the sum of [***] per day for each day on which the Tower
Facility has not been completed after the scheduled completion date (as such
scheduled completion date may have been extended pursuant to the previous
sentence) unless Horizon elects to terminate this Agreement pursuant to section
2.4 (c) in which event the liquidated damages provided for herein shall cease to
accrue on the effective date of such termination. Except as provided in section
2.4(c) herein, these liquidated damages shall be Horizon's sole remedy in the
event that BTS Company fails to meet such construction deadline.
4.6. MANNER OF CONSTRUCTION. BTS Company represents, warrants and agrees
that the Tower Facilities shall be constructed in a good and workmanlike manner
and at a minimum in accordance with Horizon's minimum specifications and all
applicable federal, state and local laws, ordinances, rules and regulations. BTS
Company warrants to Horizon that all materials furnished in connection with the
construction of the Tower Facilities will be new unless otherwise specified, and
that such construction will be of good quality in accordance with industry
standards, free from faults and patent defects. The warranties contained in this
section 4.6 shall run for a period of six (6) months from the SLA Commencement
Date, as defined in the MSA.
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4.7. NO LIENS. BTS Company shall keep the Tower Facilities free of all
liens and claims arising out of or related to the performance of the
construction, all liens and claims of any contractor, subcontractor, laborer,
mechanic or materialman for labor performed or material furnished in connection
with the performance of the construction. In the event any such lien is recorded
against the Site, the BTS Company shall, within thirty (30) days after its
receipt of notice that such a lien has been recorded, either (a) have such lien
released of record, or (b) deliver to Horizon a bond, in form, content and
amount and issued by a surety, reasonably satisfactory to Horizon, indemnifying
Horizon against all costs and liabilities resulting from such lien.
4.8. NOTIFICATION OF COMPLETION. BTS Company shall notify Horizon of: (i)
the expected date for substantial completion of the Tower Facilities at least
fifteen (15) days before that date, and (ii) the date when the Tower Facilities
have been substantially completed ("Notice of Completion"). Within three (3)
business days after the Notice of Completion, Horizon shall deliver to BTS
Company a list of items ("Punch List") that Horizon deems necessary that BTS
Company complete or correct in order for the Tower Facilities to be completed in
accordance with Horizon's minimum specifications for the applicable Search Ring.
The Tower Facilities shall be deemed accepted by Horizon if a Punch List is not
received by BTS Company within three (3) business days of the date of Notice of
Completion. In the event that Horizon delivers a Punch List to BTS Company, the
notification process set forth in this section shall be iterated until the Tower
Facilities have been completed in accordance with Horizon's minimum
specifications for the applicable Search Ring and any approved Change Orders.
V. REPRESENTATIONS, WARRANTIES AND COVENANTS
5.1 MUTUAL REPRESENTATIONS, WARRANTIES AND COVENANTS. Each party represents
and warrants to the other party, which representations and warranties shall
continue for the term of the Agreement and the consummation of the transactions
herein contemplated, that:
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(a) it has full power and authority to execute and perform under the
Agreement;
(b) the execution, delivery and performance of the Agreement have been
duly authorized by all necessary action on the part of such party and the
Agreement is binding and enforceable against such party in accordance with its
terms;
The parties covenant and agree to use their best efforts to cooperate with
each other in the performance of their respective obligations under the
Agreement, and to take no action that will interfere with the performance by the
other party of such obligations.
5.2 BTS COMPANY'S REPRESENTATIONS, WARRANTIES, AND COVENANTS.
(a) BTS Company is a corporation duly organized, validly existing, and
in good standing under the laws of the State of Florida and that, as of the
Effective Date, it is qualified to do business in and is in good standing under
the laws of the following states: Ohio, Kentucky, West Virginia, Tennessee.
(b) BTS Company warrants it shall perform the Services in accordance
with the current standards of care and diligence normally practiced by
recognized firms in performing services of a similar nature. If, during the six
(6) month period following the completion of any of the Services, Horizon
observes that the Services or a portion of the Services were incompletely or
incorrectly performed and notifies BTS Company of the same within that period,
BTS Company shall promptly complete or correct such Services without cost or
expense to Horizon.
(c) BTS Company shall comply with all local, municipal, state,
federal, and governmental laws, orders, codes, and regulations applicable to BTS
Company's provision of Services. BTS Company has all necessary licenses to
perform the Services and shall provide copies of same to Horizon.
5.3 HORIZON'S REPRESENTATIONS, WARRANTIES AND COVENANTS.
(a) Horizon represents and warrants that all information which it
shall provide to BTS Company in connection with BTS Company's performance of
Service hereunder shall be true and complete in all material respects.
(b) Horizon covenants that, in a timely fashion, it shall provide all
information which BTS Company reasonably requests, not otherwise freely
available to BTS Company, deemed necessary or desirable by BTS Company in the
course of its provision of the Services, including, but not limited to,
information to be supplied in connection with the zoning, permitting or
construction process.
(c) Horizon is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and as of the Effective
Date, it is qualified to do business in and is in good standing
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under the laws of the following states: Ohio, Kentucky, West Virginia,
Tennessee.
5.4 CONFIDENTIAL INFORMATION
(a) USE OF CONFIDENTIAL INFORMATION. In order to permit the parties to
perform their respective obligations under this Agreement, each party may, from
time to time, disclose to the other confidential or proprietary information.
Such confidential or proprietary information and the terms of this Agreement
shall constitute "Confidential Information". Each party shall use all
Confidential Information solely for the purpose of performing its obligations
under this Agreement. Neither party shall disclose to any other person, other
than employees or agents of the party who agree, in writing, to be bound by an
equivalent undertaking, any Confidential Information. BTS Company agrees not to
disclose any of Horizon's Confidential Information or any information pertaining
to the Sites to a competitor of Horizon. Horizon agrees not to disclose any of
BTS Company's Confidential Information or any information pertaining to the
Sites to a competitor of BTS Company.
(b) EXCEPTIONS. The aforementioned restrictions shall apply to all
Confidential Information with the exception of the following:
(i) Confidential Information which is made public by either party
while performing under this Agreement or which otherwise is or hereafter becomes
part of the public domain through no wrongful act, fault or negligence on the
part of the other party;
(ii) Confidential Information which a party can reasonably
demonstrate is already in such party's possession and not subject to an existing
agreement of confidentiality;
(iii) Confidential Information which is received from a third
party without restriction and without breach of an agreement with Horizon or BTS
Company;
(iv) Confidential Information which is independently developed by
a party as evidenced by its records; or
(v) Confidential Information which either party is required to
disclose pursuant to a valid order of a court or other governmental body or any
political subdivision thereof, provided that, to the extent that it may lawfully
do so, the disclosing party shall provide the affected party with immediate
written notice of the nature of the required disclosure and shall where
appropriate, provide that party with the opportunity to interpose an objection
or obtain a protective order restricting the use and disclosure of the
Confidential Information; or
(vi) in defense of a legal action or otherwise required by a
governmental agency or applicable law.
15
(c) MARKETING OF SITES. Notwithstanding the foregoing, nothing
contained herein shall be construed to prevent BTS Company from marketing space
on the Tower Facilities to be constructed on a particular Site after the Ground
Lease has been executed by the ground lessor and BTS Company.
VI. OWNERSHIP OF WORK PRODUCT AND INTELLECTUAL PROPERTY
6.1 OWNERSHIP OF WORK PRODUCT. BTS Company shall promptly disclose to
Horizon all written work product generated in the course of performing Site
Acquisition Services and all facts respecting such work product (the "Work
Product"). To the extent that Horizon pays BTS Company for the Work Product, BTS
Company hereby assigns to Horizon all of BTS Company's right title and interest
in Work Product including without limitation all engineering or architectural
drawings and specifications developed by BTS Company in connection with the Site
Development Services and all intellectual property rights embodied therein. In
addition, to the extent that Horizon pays BTS Company for the corresponding Work
Product, all inventions, discoveries, and other intellectual properties, whether
or not patentable, that are conceived or reduced to practice by BTS Company in
connection with the Site Development Services, are the sole property of Horizon,
and BTS Company hereby fully and forever assigns same to Horizon.
In addition, to the extent that Horizon pays BTS Company for the
corresponding work product all materials that BTS Company develops and delivers
to Horizon pursuant to this Agreement shall become the sole and exclusive
property of Horizon without limitation. BTS Company agrees to execute all
documents and to take all steps that Horizon deems necessary or desirable to
protect Horizon's ownership and property rights of these materials.
No Implied Rights or Licenses. Except as provided elsewhere in this
Agreement, no rights or licenses to the Work Product or Horizon's Confidential
Information or to trademarks, inventions, copyrights, or patents embodied
therein are implied or granted under this Agreement.
6.2 OWNER'S RIGHT TO COMPLETE WORK. If BTS Company defaults or neglects to
carry out any of its obligations, or takes any action, or omits to do anything
which endangers safety, or risks damage or injury to persons or property and
fails within a five (5) day period after receipt of reasonable detailed written
notice from Horizon not to commence and continue correction of such default or
neglect with diligence and promptness, Horizon may correct all such work,
omissions, or deficiencies, and Horizon shall be entitled to recover costs and
expenses, including reasonable attorneys' fees, pertaining thereto from BTS
Company. This remedy provided for in this section 6.2 shall be in addition to,
and not in lieu of any other right or remedy which may be afforded to Horizon
herein or under applicable law.
VII. DISPUTE RESOLUTION
7.1 ARBITRATION PROCEDURE. If the parties in this Agreement are unable to
resolve any dispute arising out of or relating to this Agreement either party
may refer such dispute for resolution by final and binding arbitration. The
party submitting a dispute to arbitration shall give notice thereof to each
other party to such dispute and to the President of the American Arbitration
16
Association, who shall select an arbitrator (the "Arbitrator") who (i) has
expertise and at least five years' experience in matters directly involved with
the type of services to be performed under this Agreement in the geographic area
in which the obligations hereunder are to be performed, (ii) certifies to all
parties that he/she is independent of the parties to the dispute and will be
able to render an impartial decision, and (iii) agrees to proceed in accordance
with the applicable provisions of this Section VII.
The Arbitrator shall hold one or more hearings to begin within fifteen (15)
days of his/her selection, shall furnish a written decision within forty-five
(45) days of his/her selection, and shall provide an opinion demonstrating the
basis for such decision. The Arbitrator may also attempt to mediate the dispute
between parties if requested to do so by both of the parties.
The parties hereto agree to exchange promptly any and all relevant
documentation as the Arbitrator may order. All arbitration proceedings hereunder
shall be conducted in private, and each party hereby agrees to maintain the
confidentiality of the enforcement of the award. All arbitration hearings or
mediation sessions are to be held in the Chillicothe, Ohio area unless otherwise
agreed by the parties, and arbitration hearings need not be conducted in
accordance with formal rules of evidence.
The Arbitrator may determine the procedure for hearings which may, but need
not include (a) direct testimony of witnesses; (b) cross-examination of
witnesses; (c) submission of sworn statement or affidavits; (d) consideration of
relevant documents; and (e) consideration of other matters which the Arbitrator
considers to be helpful in making his/her decision.
7.2 COST OF ARBITRATION. The Arbitrator's fees and other expenses
associated with arbitration shall be borne equally by the parties, unless the
Arbitrator finds that the position of one party is frivolous or unreasonable, in
which case, the Arbitrator may require the offending party to pay all fees and
expenses (or some disproportionate amount) associated with the arbitration.
7.3 CONTINUED PERFORMANCE. At all times during the course of arbitration
proceedings, the parties shall continue in good faith to perform their
respective obligations under this Agreement to the extent such obligations are
not in dispute. If a disputed issue is impeding continued performance by either
party, the Arbitrator may adopt an expedited schedule upon request of either
party. Notwithstanding the foregoing, should BTS Company not be paid in timely
fashion for any Service not disputed and not subject to arbitration proceedings,
BTS Company may suspend its performance of such Service.
7.4 AWARD ENFORCEMENT. The arbitrator may award monetary damages and/or
make a binding order, and the parties hereby agree that an award of the
Arbitrator hereunder may be enforced by either party in the United States
District Court which has jurisdiction over matters arising in Chillicothe, Ohio.
7.5 THIRD PARTY GUARANTEES AND WARRANTIES. If any of the Site Acquisition
or Construction Management Services requires the purchase of equipment or
17
materials or the procurement of services, BTS Company shall make reasonable
efforts to obtain from all vendors and subcontractors commercially reasonable
guarantees and Warranties with respect to such equipment, materials and
services. BTS Company's liability with respect to such equipment and materials
obtained from vendors or services from subcontractors shall be limited to
procuring guarantees from such vendors or subcontractors and rendering all
reasonable assistance to Horizon as part of the Site Development Services for
the purpose of enforcing the same.
7.6 PERMITS. BTS Company shall (without additional compensation) keep
current all governmental permits (other than Building Permits), certificates,
and licenses (including professional licenses) required by law to be in BTS
Company's name necessary to perform the Services.
7.7 PUBLICITY. Neither party shall make news releases or issue other
advertising pertaining to the Site Acquisition Services or this Agreement
without prior written approval of the other party; provided however, that both
parties agree to either approve or deny such news release or advertising within
two (2) business days of the request for approval from the other party. In the
event a party fails to either approve or deny such news release or advertisement
within two (2) business days, such news release of advertisement shall be deemed
approved.
7.8 NOTICES. All notices or other communications hereunder shall be in
writing and shall be deemed to have been duly delivered and effective upon
receipt if personally delivered, or on receipt if mailed by prepaid overnight
express service, addressed to the following (or other addresses as the parties
hereto may designate):
If to Horizon, to: If to BTS Company, to:
------------------ ----------------------
Horizon Personal Communications, Inc. BTS Company
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ SBA Towers, Inc.
▇.▇. ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Vice President Technology Attn: General Counsel
7.9 BINDING EFFECT. The Agreement shall be binding upon and enforceable by,
and inure to the benefit of, successors, assigns, and transferees of the
parties.
7.10 FURTHER ASSURANCES. The parties shall execute and deliver such further
instruments and perform such further acts as may reasonably be required to carry
out the intent and purposes of this Agreement.
7.11 CHOICE OF LAW. The Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio, excluding the conflict of law
provisions thereof.
7.12 WAIVER. The failure of either party to insist upon strict performance
of any obligation hereunder, irrespective of the length of time for which such
failure continue, shall not be a waiver of such party's right to demand strict
compliance in the future. No consent or waiver, express or implied, to or of any
18
breach or default in the performance of any obligation hereunder shall
constitute a consent or waiver to or of any other breach or default in the
performance of the same or any other obligation hereunder.
7.13 SEVERABILITY. In case any term of this Agreement shall be held
invalid, illegal, or unenforceable in whole or in part neither the validity of
the remaining part of such term nor the validity of the remaining terms of this
Agreement shall in any way be affected thereby.
7.14 HEADINGS. All section and paragraph titles or captions contained in
this Agreement arc for convenience only and shall not be deemed part of the text
of this Agreement.
7.15 PRONOUNS. All pronouns and any variations thereof shall be deemed to
refer to the masculine, feminine, neuter, singular, or plural as the context may
require.
7.16 COUNTERPARTS. This Agreement may be signed in any number of
counterparts, each of which shall be considered an original and all of which
taken together shall constitute one and the same instrument.
7.17 MODIFICATION; AMENDMENT; ADDITIONAL SERVICES. This Agreement may be
amended only by a written instrument executed by an officer or authorized
representative of each of the parties. In the event that the parties, at any
time, desire BTS Company to provide services other than the types of those
provided for in this Agreement, then, at such time, the parties shall execute an
amendment to Sections III and IV of this Agreement, describing such services and
the payment to be made therefor in a manner substantially similar to the manner
in which Services and payment for Services are presently described therein. In
the vent that the parties so amend this Agreement, the agreement as amended,
shall continue in full force and effect thereafter.
7.18 CONSTRUCTION OF AGREEMENT. This Agreement shall be interpreted
according to its plain meeting and shall not be strictly construed against
either party.
7.19 ENTIRE AGREEMENT. This Agreement, the MSA, and the Site Development
Agreement ("Site Development Agreement") which are executed simultaneously
herewith between Horizon and BTS Company and the APA which is executed
simultaneously herewith contain the entire understanding between and among the
parties and supersede any prior understandings and agreements among them
respecting the subject matter of this Agreement.
7.20 CONDITIONS PRECEDENT. BTS Company shall have the right to terminate
this Agreement if the following conditions have not been satisfied prior to the
Closing (as that term is defined in the APA): 1) a BTS Agreement in form
substantially similar to this Agreement has been entered into between Bright
PCS, LLC and BTS Company; and 2) this Agreement has been approved by the Board
of Directors of BTS Company. In the event that BTS Company fails to obtain
approval of this Agreement by its Board of Directors on or before September 1,
1999, this Agreement shall terminate and BTS Company shall pay to Horizon the
sum of Fifty Thousand andNo/100 Dollars ($50,000.00). In the event that this
Agreement is terminated pursuant to this section 7.20, Horizon shall pay BTS
19
Company for any services provided hereunder in accordance with Section 2.2 and
BTS Company shall deliver all Work Product to Horizon as provided in section
6.1.
7.21 NO BROKERS; INDEMNIFICATION FROM BROKER'S FEES. Horizon and BTS
Company hereby represent, agree an acknowledge that no broker or other person is
entitled to claim or to be paid a commission as a result of the execution and
delivery of this Agreement. Each of the parties shall indemnify, defend and hold
the other party harmless for all claims, damages, liabilities and expenses
(including attorney's fees) arising from a misrepresentation arising from the
first sentence of this paragraph.
IN WITNESS WHEREOF, BTS Company and Horizon have duly executed and
delivered this Agreement. The party last executing this Agreement shall insert
the date of such execution on the first page hereof, which date shall be the
Date of this Agreement.
BTS COMPANY:
SBA TOWERS, INC.
By:_________________________________
Title:______________________________
Attest:_____________________________
[CORPORATE SEAL]
HORIZON:
HORIZON PERSONAL
COMMUNICATIONS, INC.
By:_________________________________
Title:______________________________
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SCHEDULE "A"
SITE ACQUISITION SERVICES
1. Search Ring Background Workup. BTS Company shall prepare a zoning,
construction, and land use analysis of the geographic area covered by each
Search Ring, which will include, at a minimum:
a. Listing of all state and local jurisdictions;
b. Zoning process descriptions;
c. Zoning maps in both hardcopy and softcopy formats, to the extent
possible;
d. Zoning application forms, and estimates of necessary fees;
e. Zoning meeting schedules;
f. Sample construction and land use permit applications, forms, estimates
of necessary fees, identity of permitting authorities and their
various meeting schedules;
g. Contact information (name, address, affiliation, phone, e-mail and
fax) for key zoning, construction, and land use permitting personnel;
h. Background report on community awareness, issues, and concerns related
to PCS infrastructure deployment
i. Identified Federal Aviation Administration (FAA) restrictions;
j. Identified environmental restrictions.
2. Site Identification, Acquisition, Zoning and Permitting
a. BTS Company shall identify at least two possible locations on which a
Collocation Site or a BTS Site could be located within each Search
Ring. Each candidate Site shall be submitted to Horizon, which will
certify in writing to BTS Company whether each such Site meets
Horizon's requirements within ten (10) days of such submission.
Submission of the Site shall be made to the person designated by
Horizon from time to time. Horizon shall designate one of the
candidate Sites as the Preferred Candidate.
b. BTS Company shall negotiate the purchase or lease of the Preferred
Candidate within each Search Ring. If the Preferred Candidate is a BTS
Site, the purchase or lease agreement for such Site shall be between
21
the landowner and BTS Company and shall be on terms and conditions
substantially similar to the agreement which is attached hereto as
Exhibit "B" (hereafter the "Ground Lease"). In no event shall BTS
Company agree to material modifications to the provisions set forth in
paragraph 35 of the Ground Lease without Horizon's prior written
approval. In the event that the Preferred Candidate is a Collocation
Site, the lease for such Site shall be between the landowner and
Horizon. The purchase and lease terms for each Collocation Site shall,
upon completion of their negotiation by BTS Company, be submitted to
Horizon in writing, and Horizon shall accept or reject same, in
writing (acceptance may be by execution of documents presented, if
appropriate).
c. For all BTS Sites, BTS Company shall conduct a thorough title
investigation in accordance with generally accepted industry standards
to ensure that BTS Company has a valid and enforceable leasehold
interest in the Site and that the intended use of such Site is not
prohibited or unreasonably restricted. For Collocation Sites, BTS
Company shall, at the express written direction of Horizon order title
abstracts, coordinate a full title search, and/or obtain title
insurance.
d. For all BTS Sites, BTS Company shall have a Phase I environmental
assessment and a NEPA analysis conducted to ensure that the site is
free from environmental contamination and that construction of the
Site does not require FCC approval. At the express written direction
of Horizon, BTS Company shall coordinate a "Phase I" or other
environmental surveys for approved and accepted Collocation Sites.
e. BTS Company shall obtain all land use permits and/or zoning variances
required for each approved and accepted Site if any are necessary. If
no approvals or variances are required, BTS Company shall provide
proof thereof. In connection with obtaining these approvals and
variances, BTS Company shall:
i. Submit complete zoning applications with all necessary exhibits;
ii. Attend necessary meetings, including zoning hearings, planning
meetings, and community meetings, as a representative of Horizon;
iii. Coordinate community outreach programs, expert witness testimony,
and other measures which may be required to assure the zoning,
construction, and land use of approved and accepted Sites.
iv. Secure all required construction permits on behalf of BTS Company
and Horizon.
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3. Documentation of Site Acquisition Services.
BTS Company shall maintain a comprehensive record (both hardcopy and
electronic copy, when available) indexed by Site, which shall include
the following elements, at a minimum:
a. Site Survey Report for each of the Sites presented to Horizon for
approval, consisting of property name, address, latitude,
longitude, photos, site owner or property manager contact
information, and proposed lease rate or purchase price;
b. For each of the approved and accepted Sites, the fully executed
lease agreement or purchase document with all exhibits;
c. For each of the approved and accepted Sites, the copy of zoning,
construction, and land use applications and zoning variance
requests, if any, with all exhibits;
d. For each of the approved and accepted Sites, the copy of the land
use permits;
e. For each of the approved and accepted Sites, the Landlord
approval of construction plans, and other indicia of compliance
with lease terms;
f. For each of the approved and accepted Sites, copy of the
construction permits.
4. Organizational Interfaces
a. BTS Company shall designate one or more points of contact, as it
deems efficient, in order to communicate effectively with
Horizon. BTS Company shall obtain Horizon's explicit approval
before obligating Horizon financially, contractually, or
otherwise.
b. BTS Company shall coordinate the activities of the Architectural
and Engineering (A&E) firms during the site acquisition phase, to
include the development of site-specific drawings for landlord
approval and for zoning purposes.
c. BTS Company shall coordinate all site visits during the site
acquisition phase, to include at a minimum: site surveys,
technical team visits, drive tests, construction surveys, A&E
surveys, geotechnical surveys, and environmental surveys.
d. BTS Company shall work to ensure a smooth transition of
site-related activities from Site Acquisition to Construction
Management.
e. BTS Company shall procure on behalf of Horizon required
discretionary (zoning, construction, and land use) entitlements
and other permits, including building permits required for
23
completion of Sites from state and local government authorities
and from agencies of the United States Government other than the
Federal Communications Commission ('FCC').
f. BTS Company will from time to time provide Horizon with such
financial information as Horizon deems reasonably necessary to
track costs associated with the development of the Sites.
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SCHEDULE "B"
CONSTRUCTION MANAGEMENT SERVICES
The Construction Management Services to be performed by BTS Company are as
follows:
1. For all approved and accepted Sites, BTS Company shall, as required by
Horizon, continue its installation of Horizon's Equipment on such Sites by
acting as the construction manager in the capacity of general contractor to
Horizon.
2. The Minimum Construction Management Services which BTS Company shall
perform include:
a. Ordering and permitting access and delivery for the installation of
commercial electrical power.
a. Permitting access to, arranging for, scheduling accepting delivery of
telephone service as ordered to be installed by BTS Company.
b. Management and supervision of day-to-day construction activities,
including
i. Site access preparation;
ii. Site preparation;
iii. Electrical connection, power, and grounding;
iv. Antenna mounting and coaxial routing and mounting;
v. Placement of OEM equipment;
vi. Safety and OSHA compliance.
2. BTS Company Operating Standards.
a. All construction activities shall fully comply with Sprint Spectrum,
L.P.'s standards for quality, as well as with all local, state, and
national codes and laws.
b. BTS Company shall present and fully implement a comprehensive safety
program. BTS Company shall demonstrate its corporate safety record.
BTS Company shall document and report safety hazards, environmental
concerns, and other abnormal situations immediately.
25
3. Subcontractor and Supplier Management.
a. BTS Company shall select all subcontractors and suppliers. BTS Company
shall develop subcontractor and supplier selection standards. BTS
Company shall implement a subcontractor and supplier election process
that reflects the best interests of Horizon at all times.
b. BTS Company shall maintain full responsibility to Horizon for quality,
cost, delivery, and performance of all subcontractor and supplier
goods and services.
4. Materials Management
a. Horizon shall provide the following materials FOB at BTS Company's
warehouse location as identified from time to time, but initially
located in Fort ▇▇▇▇▇, Indiana: All Antennas, microwave antennas,
hardware and fines, GPS antennas, hardware and lines, Coaxial Cable,
Jumpers, Connectors, Waterproof Kits, Hoisting Grips, Mounting
Brackets, Generators, Battery Backup kits, BTS equipment and BTS
Mounting platforms or equipment.
b. BIS Company will provide at its cost and retain possession of at
expiration or earlier termination of the relevant site lease, tower
platforms, ice bridges, towers, fencing, grounding systems, power and
telephone connections to a central demarcation point within the tower
compound, and a concrete equipment pad as specified by site diagrams
for Horizon's BTS Equipment and Battery Backup.
c. BTS Company will install each of the foregoing to agreed upon
specifications, perform sweep tests and document results meeting or
exceeding Horizon standards and set Horizon BTS equipment and connect
to grounding system and provide resistance to ground tests yielding 5
ohms or less, for a fee defined in Schedule "C". BTS Company shall
provide conduit for electrical and telephone connections from central
demarc point to Horizons BTS Equipment location and will pull coaxial
cables into the "doghouse" and install jumpers. Horizon shall be
responsible for connecting power, telephone and coaxial cable jumpers
to Horizon's BTS equipment.
d. BTS Company will provide warehouse space for storage and staging of
Horizon and BTS Company's equipment and will implement inventory
control and security processes acceptable to Horizon.
5. Final Deliverables. As the final deliverable of its Construction Management
Services, BTS Company shall deliver to Horizon a written Closeout Report
for each CMS site within 10 days of completion, which shall include a
thorough and fully approved close out package of all Sites. Close out
activities shall include, but are not limited to final inspection, punch
list development and resolution, and final walk-through and inspection with
Horizon. BTS Company shall not have completed close out until it has
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received notice from Horizon of completed close out following final
walk-through and inspection, which notice shall not be unreasonably
withheld.
6. Documentation of Construction Management Service. BTS Company shall
maintain comprehensive records for each site for which it performs
Construction Management Services, indexed by CMS Site, which shall include
the following, at a minimum:
c. land use permit,
d. construction and related permit,
e. current construction status,
f. detailed financial accounting records, including but not limited to,
approved purchase orders price quotations and selections criteria; and
verification of goods or services received.
7. Organizational Interfaces.
g. BTS Company shall designate one or more points of contact, as it deems
efficient, in order to communicate effectively with Horizon. BTS
Company shall obtain Horizon's explicit prior written approval before
obligating Horizon financially, contractually, or otherwise.
h. BTS Company shall coordinate the activities of the Architectural and
Engineering (A&E) firms during the construction phase, to include
ensuring that basic site drawings provided by Horizon are tailored to
the specific requirements of individual Sites.
i. BTS Company shall coordinate all site visits during the construction
phase, to include at a minimum: site surveys, technical team visits,
drive tests, construction surveys, architectural and engineering
surveys, geotechnical surveys, and environmental surveys.
d. BTS Company shall from time to time provide Horizon with such
financial information as Horizon deems reasonably necessary to track
costs associated with the development of the Sites.
e. BTS Company shall coordinate its Construction Management Services with
Horizon to insure that each Site delivered by BTS Company pursuant to
the terms of this Agreement shall be ready for delivery and
installation of equipment in accordance with Horizon's equipment
vendor contracts, and that all conditions to such equipment vendor's
installation of equipment and performance of services on a Site shall
have been fulfilled. No Site shall be deemed completed unless it has
been delivered to Horizon in accordance with the terms of this
Section.
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[***] - CONFIDENTIAL TREATMENT REQUESTED
SCHEDULE "C"
PAYMENT FOR SITE ACQUISITION SERVICES AND CONSTRUCTION MANAGEMENT SERVICES
IV. PAYMENT
A. COMPENSATION FOR SITE ACQUISITION AND CONSTRUCTION COSTS FOR BTS
SITES.
BTS Company shall be solely responsible for all costs associated with Site
Acquisition Services for all sites on which the Preferred Candidate is a BTS
Site. BTS Company shall by solely responsible for all costs associated with the
construction of the Tower Facilities on each BTS Site. Horizon shall pay BTS
Company for Construction Management Services which are rendered by BTS Company
on BTS Sites in accordance with paragraph B(2) below as if such Site were a
Collocation Site.
B. COMPENSATION FOR SERVICES ON SITES
1. Site Acquisition Fees
a. Per Site Fees for Site Acquisition on Collocation Sites In
consideration for performance of the Site Acquisition for
Collocation Sites Horizon shall pay BTS Company, the sum of
[***] per Site on which zoning approval is not required, and
the sum of [***] per Site on which zoning approval is
required, in the manner set forth below:
------------------------------------------------------------------------------
Milestone Amount Due
------------------------------------------------------------------------------
Upon, RF approval of a completed [***]
Site Survey Report
------------------------------------------------------------------------------
Upon, fully executed lease or [***]
purchase agreement for a site
------------------------------------------------------------------------------
Upon receipt of zoning approval [***]
(if applicable)
------------------------------------------------------------------------------
Upon, Issuance of a building [***]
permit or equivalent approval
------------------------------------------------------------------------------
Total amount due upon completion [***] for sites on which zoning
of Site Development Services approval is required of Site Development
[***] for sites on which zoning
approval is not required
------------------------------------------------------------------------------
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[***] - CONFIDENTIAL TREATMENT REQUESTED
b. Per Site Fees for Site Acquisition on BTS Sites In
consideration for performance of the Site Acquisition
Services for BTS Sites for which payment is due pursuant to
this Agreement, Horizon shall pay BTS Company in accordance
with this Agreement, an amount not to exceed the sum of
[***] per Site in the manner set forth below.
------------------------------------------------------------ -----------------
Milestone Amount Due
------------------------------------------------------------ -----------------
Upon, RF approval of a completed Site Survey Report [***]
------------------------------------------------------------ -----------------
Upon, fully executed lease or purchase agreement for a site [***]
------------------------------------------------------------ -----------------
Upon receipt of zoning approval (if applicable) [***]
------------------------------------------------------------ -----------------
Upon, Issuance of a building permit or equivalent approval [***]
------------------------------------------------------------ -----------------
Total amount due upon completion of Site Development [***]
Services
------------------------------------------------------------ -----------------
c. Reimbursement for Per Site Advances
i. Non-Reimbursable Costs. BTS Company's compensation for the
Site Acquisition Services on Collocation Sites shall be
inclusive of customary out-of-pocket expenses incurred by
BTS Company in the performance of its obligations hereunder
("Per Site Fee"), including, without limitation;
(a) wireless equipment and services;
(b) field expenses for maps, deeds, and film development;
(c) vehicle expense; and
(d) travel and living expenses.
Any extraordinary or other expenses that BTS Company should
reasonably anticipate incurring, which are not customarily
incurred in the ordinary course of business, must be
pre-approved by Horizon in order for BTS Company to receive
reimbursement for such expenditures.
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ii. Reimbursable Costs.
In the event that BTS Company provides or contracts directly
with third parties, trade contractors, and subcontractors in
connection with its provision of Site Acquisition Services
for Collocation Sites, the following expenses (in addition
to other expenses which the parties may agree to from time
to time) shall be considered pass through costs and be
reimbursed to BTS Company to the extent not paid directly by
Horizon in accordance with IV(a) above, provided, however,
that Horizon shall be obligated to reimburse expenses
incurred by BTS Company only with respect to which BTS
Company had received express written direction from
Horizon.:
(a.) Any and all construction materials used in the
installation of Horizon's Equipment on the Site;
(b.) Any and all construction subcontractor cost including,
but not limited to, cable and antenna contractors and
electricians;
(c.) Architectural and electrical engineering drawings;
(d.) Azimuth verification surveys;
(e.) Blueprint reproduction;
(f.) Building inspection fees; except that Horizon will not
pay for any expedited delivery costs, unless
specifically authorized by Horizon
(g.) Cable sweeps and other technical tests;
(h.) Costs involved in varying zoning compliance, including
permit and inspection fees;
(i.) Delivery costs for all materials except that Horizon
will not pay for any expedited delivery costs, unless
specifically authorized by Horizon;
(j.) Engineering services;
(k.) Federal Aviation Administration study and analysis;
(l.) GIS/mapping;
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(m.) Independent inspection agencies;
(n.) Legal support and expert witness fees for zoning
hearings;
(o.) Option fees for leases, lease options, purchase
agreements, and purchase agreement options to the
extent such options were approved by Horizon in
advance;
(p.) 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;
(q.) Photo simulations;
(r.) Site survey;
(s.) Structure loading study and analysis for towers,
rooftops, water tanks, billboards and signs, and other
similar facilities expected to contain PCS equipment;
(t.) Appraisals, title reports, and title insurance
premiums;
(u.) Zoning, filing, and permitting application fees and
(v.) Office supplies and equipment, but only to the extent
that such supplies and equipment requests are in
compliance with Horizon's standard policies and
procedures for such expenses.
2. Construction and Construction Management Fees.
a. Per CMS Site Fees. In consideration for performance of the
construction and Construction Management Services ('CMS'),
Horizon shall pay BTS Company an amount to be mutually
agreed upon on a site by site basis in the manner set forth
below:
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[***] - CONFIDENTIAL TREATMENT REQUESTED
--------------------------------------------------------------------------
Milestones Amount Due
--------------------------------------------------------------------------
Upon the commencement of construction [***]
on the CMS Site
--------------------------------------------------------------------------
Final acceptance of civil construction [***]
on the CMS Site
--------------------------------------------------------------------------
Total amount due per CMS Site To be agreed upon on a site by
upon completion of Construction site basis
Management Services
--------------------------------------------------------------------------
b. Withdrawal
In the event Horizon elects to withdraw a CMS Site, Horizon
shall give BTS Company notice of such withdrawal, and shall
pay BTS Company [***] of the milestone installment that
would be due if the work currently in progress was completed
and [***] of all other work completed on the withdrawn CMS
Site as of the date of Horizon's withdrawal notice plus
reimbursable expenses and substitute the withdrawn CMS Site
with an alternative site within sixty (60) days
("Alternative CMS Site"), if available. If Horizon does not
issue an Alternative CMS Site within sixty days of
withdrawing a CMS Site, then BTS Company shall be entitled
to receive 50% of the entire Construction Management Fee,
for the CMS Site withdrawn.
c. Payments to Contractors
BTS Company shall be responsible for making all payments due
to contractors and subcontractors selected by, or contracted
with, BTS Company to perform services and to provide
materials at the Sites in connection with Construction
Management Services rendered hereunder. Horizon may advise
BTS Company in writing that Horizon will pay them directly.
BTS Company shall present copies of all such invoices
relating to the installation of Horizon's Equipment which
BTS Company has paid, and Horizon shall then provide BTS
Company reimbursement of such disbursements within thirty
(30) days of BTS Company's submission of said invoices to
Horizon.
BTS Company shall furnish evidence satisfactory to Horizon
that all labor furnished and material consumed by BTS
32
Company during the invoice period has been paid in full and
that the Services are not subject to liens or claims on
account thereof. Horizon may withhold payment of the invoice
until BTS Company furnishes such evidence.
C. TIMING OF PAYMENT
All invoices shall be sent to Horizon's mailing address and marked: Attn:
Accounts Payable. BTS Company shall invoice Horizon in accordance with the
payment schedule set forth herein. Such invoice, after receipt in form
satisfactory to Horizon, and subject to verification by Horizon, shall be paid
within thirty (30) days of receipt by Horizon. Invoices must be sent in
accordance with the invoicing instructions provided in this Agreement. All
invoices must indicate the FEIN #____________ and the correct code per line item
as invoices. These codes will be provided to BTS Company by Horizon.
D. PAYMENT DISPUTES
If Horizon disputes the amount of expenses or fees claimed by BTS Company,
Horizon shall notify BTS Company in writing and shall pay when due all amounts
not in dispute. If the disputed matter cannot be resolved informally between the
parties, either Horizon or BTS Company may request arbitration pursuant the
terms of this Agreement.
E. LIABILITIES
BTS Company shall remain solely responsible for all matters relating to
compensation, unemployment disability insurance, social security, withholding,
and all other federal, state, and local laws, rules and regulations governing
such matters.
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EXHIBIT "A"
MSA
34