EXHIBIT 10.14
SITE DEVELOPMENT SERVICES AGREEMENT
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THIS SITE DEVELOPMENT SERVICES AGREEMENT ("Agreement") dated as of the
10th day of December, 1997 ("Effective Date"), by and between Triton PCS, Inc.,
a Delaware limited liability company or its nominee ("Triton") and Entel
Technologies, Inc., a Delaware corporation ("Entel").
WITNESSETH:
WHEREAS, Triton desires to engage Entel to perform services related to
the development of a personal communication services ("PCS") system (the
"System") to serve the Washington, D.C./Richmond/Norfolk, Virginia Major Trading
Area (the "Service Area") comprising certain sites of real property which are
designated by Triton from time to time through a letter of authorization
("Authorization Letter") and upon which antennae towers, wires, and/or other
ancillary PCS equipment shall be located ("Site").
WHEREAS, Triton desires to enter into an arrangement with Entel for
certain services, as hereinafter defined, relating to the development of certain
portions of the System, to include site acquisition, zoning, and construction
management services.
1. RELATIONSHIP OF PARTIES
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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, and neither shall have
authority to act for, bind, or commit the other party. Entel and Triton agrees
that this Agreement does not establish a franchise, joint venture, or
partnership for any purpose.
2. REQUIRED SERVICES
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Entel shall be assigned a range of sites between 200 sites ("Base
Number") and 250 or more sites ("Maximum Number") to perform site development
services ("Site Development Services") for Triton with respect to the System.
Entel shall devote such time and resources as are necessary to ensure proper and
expeditious completion of its duties hereunder and shall make available to the
System the full range of its expertise and experience in constructing wireless
systems. Site Development Services shall consist of the services described on
Attachment A hereto.
A. Entel Deliverables; Reporting; Approval by Triton. Within 10 business
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days after execution of this Agreement, Triton and Entel shall agree upon and
prepare a detailed schedule for the completion of Site Development Services on a
site-by-site basis, which schedule shall become Attachment B to this Agreement.
The schedule shall contain at a minimum, milestone dates for completion by Entel
of Site Acquisition, Site Zoning, and Site Construction Services (each as
defined in Attachment A). This Agreement shall automatically terminate if the
parties are unable, after good faith negotiations, to agree to a schedule within
the allotted 10 business days; provided, however, in the event of such
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termination, Triton shall pay to Entel all professional fees and out-of-pocket
expenses incurred by Entel prior to such termination, which fees shall not
exceed $200,000. Following approval of this schedule by Triton, Entel shall,
thereafter, for the term of this Agreement, provided Triton with not less than a
written weekly report outlining the progress made to attain the schedule
previously submitted. Any change in report schedule which results in a time
extension of one week or greater on an individual site basis shall be clearly
noted and the reasons therefore shall be explained in writing. Triton may, at
its
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sole discretion, agree to a time extension from the detained schedule originally
provided. Entel shall attend all project meetings reasonably requested by
Triton.
B. Payment to Contractors. Triton shall be responsible for
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making all payments due to contractors and subcontractors selected by Triton to
perform services at the Sites. Notwithstanding the foregoing, Triton, at its
option, may require Entel to contract directly with all trade contractors and
subcontractors for provision of services at the Sites. Should Triton exercise
such option, Entel shall be responsible for disbursing funds for payment only to
those contractors, subcontractors, material providers, and other service
providers engaged by Entel directly. Entel shall present copies of all such
invoices relating to construction of the Sites to Triton, and Triton shall then
provide Entel reimbursement of such reimbursements plus eight percent (8%)
within thirty (30) days of Entel's submission of said invoices to Triton.
3. PERSONNEL
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A. Entel Employees and Agents. Entel may elect to rely upon its own
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employees and agents for the performance of services under this Agreement to the
extent it, in its sole discretion, deems such action to be necessary or
advisable. Triton reserves the right to approve Entel employees and/or
contractors assigned to perform services under this Agreement.
B. Independent Contractors. Entel may engage independent contractors at
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Triton's consent to perform Site Development Services. Entel shall be
responsible for selecting and contracting such independent contractors.
C. Self Dealing. Entel may rely upon its employees in accordance with
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Section 3(B) above and, in addition, it may provide or contract with an
affiliate of Entel with Triton's consent at fair market rates in accordance with
competitive bids to provide goods or services beyond those which its employees
would perform, if it deems the same to be necessary or advisable for
construction of the Sites. Entel will not, nor will any of its affiliates,
receive any compensation other than as set forth in Section 4 and 6 herein as a
result of, arising from, or relating to Site Development Services. If any such
compensation would have otherwise been payable, Entel agrees to transfer the
benefit of such compensation to Triton.
D. Prohibition of Solicitation. During the term of this Agreement,
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neither party shall solicit nor accept for employment any employees of the other
party without the express written consent of the other party.
4. COMPENSATION
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A. Reimbursement. Entel's compensation hereunder, as described in Section
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4(B), shall be inclusive of any and all out-of-pocket expenses, as described in
Section 5, incurred by Entel in the performance of its obligations hereunder.
Any extraordinary or other expenses which Entel anticipates incurring which are
not customarily incurred in the ordinary course of business must be approved by
Triton prior to the expenditure in order for Entel to receive reimbursement for
such expenditures.
B. Milestone Rates. In consideration for performance of the Site
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Development Services, Triton shall compensate Entel the Milestone Rates set
forth below:
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Milestone Services MILESTONE RATES
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(i) Site Survey Milestone $2,000.00
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(ii) Lease Milestone $4,000.00
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(iii) Zoning Milestone $4,000.00
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(iv) Building Permit Milestone $1,000.00
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(v) Construction Commencement Milestone $4,000.00
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(vi) Construction Completion Milestone $4,000.00
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C. Alternative Sites. In the event Triton elects to withdraw a Site
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assigned to Entel under the Authorization Letter or termination this Agreement
in accordance with Section 8 hereof, Triton shall give Entel notice of such
withdrawal, and shall pay Entel 100% of the installment due for a Milestone
Service which has been completed prior to the notice of withdrawal or
termination and time and materials for a Milestone Service in process since the
last completed Milestone in accordance with the rates set forth in Section 4(B).
D. Additional Services. In the event Triton desires Entel to perform
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isolated tasks associated with a Site not set forth on Attachment A, Triton
shall pay Entel at its standard hourly rates listed on Attachment C.
E. Statements. Entel shall provide Triton with statements showing in
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reasonable detail the calculation of Milestone Rates earned during the last
calendar month not more than thirty (30) calendar days following the end of each
calendar month. The Milestone Rates shall be paid by Triton to Entel within
thirty (30) days following such submission of invoices by Entel unless disputed
by Triton as provided below.
F. Applicability of Section. Payment shall be due Entel from Triton under
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the provisions of this Section with respect to all Site Development Services
performed by Entel for Triton from and after the Effective Date.
5. NON-REIMBURSABLE COSTS
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Entel's compensation, described in Section 4(B), is inclusive of the
following out-of-pocket expenses.
A. Cellular phones/pagers;
B. Cellular/paging service;
C. Field expenses for maps, deeds, and film development;
D. Vehicle expense;
E. Office equipment, including computers, and copiers, if additional
copiers are required beyond what is provided at Triton's field
offices;
F. Office rent, if additional space is required beyond what is provided
at Triton's field offices;
G. Office supplies;
H. Overnight mail, excluding the cost of overnight mail for construction
bids;
I. Telephone service;
J. Travel and living expenses; and
K. GIS mapping.
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6. REIMBURSABLE COSTS
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As described in Section 2(B), Triton, at its option, may require Entel
to contract directly with third parties, trade contractors, and subcontractors
for provision of services at the Sites. The following expenses shall be
considered pass through costs and shall be reimbursed to Entel as additional
compensation in accordance with the terms and conditions, as described in
Section 2(B);
A. Any and all construction materials used in the construction of the
sites;
B. Any and all construction subcontractor cost including, but not limited
to, cable and antenna contractors, electricians, and tower erectors;
C. Architectural and engineering drawings;
D. Azimuth verification surveys;
E. Blueprint reproduction;
F. Building inspection fees;
G. Cable sweeps and other technical tests;
H. Purchase price for real estate acquisitions and easement rights;
I. All municipal filing, permit, and inspection fees;
J. Delivery costs for all materials;
K. Engineering services;
L. Federal Aviation Administration study and analysis;
M. Floodway investigation;
N. Independent inspection agencies;
O. Legal support and expert witness fees for zoning hearings;
P. Option fees for leases, lease options, purchase agreements, and
purchase agreement options;
Q. Overnight mail for construction bids;
R. Phase 1 Environmental Study, including soil compaction, engineering,
and other inspection of the property required or reasonably deemed
necessary to provide a thorough due diligence review of the project;
S. Photo simulations if not available through Entel's in-house
capabilities;
T. Site survey;
U. Soils tests and reports, including geotechnical testing;
V. Structure loading study and analysis for towers, rooftops, water
tanks, billboards and signs and other similar facilities expected to
contain PCS equipment;
W. Appraisals, title reports, and title insurance premiums; and
X. Tower/foundation design information.
7. TERM
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The Agreement shall have an initial term of fifteen (15) months
commencing on the Effective Date. The Agreement shall be renewed automatically
for additional 1-year terms unless one party notifies the other party of an
intent to cancel the Agreement at the end of its then current term by written
notice delivered at least 90 days prior to the end of the then current term.
8. TERMINATION
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A. In addition to its rights to terminate this Agreement in accordance
with Section 2 and Section 14:
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(i) Triton may terminate the Agreement upon written notice
thereof if there is a material breach of the Agreement by Entel
(including, without limitation, Entel's failure to provide either
timely or quality Site Development Services); or
(ii) Triton may terminate the Agreement upon written notice
thereof if Entel shall: (i) become insolvent, (ii) make an assignment
for the benefit of creditors; (iii) file a voluntary bankruptcy
petition; (iv) acquiesce to any involuntary bankruptcy petition; (v)
be adjudicated bankrupt; or (vi) cease to do business.
▇. ▇▇▇▇▇ may terminate the Agreement on 30 calendar days' written notice
in the vent of any of the following:
(i) a material breach of the Agreement by Triton, which has not
been cured within 30 calendar days of Triton's receipt of written
notice of such breach from Entel; or
(ii) Triton shall: (i) become insolvent; (ii) make an
assignment for the benefit of creditors; (iii) file a voluntary
bankruptcy petition; (iv) acquiesce to any involuntary bankruptcy
petition; (v) be adjudicated bankrupt; or (vi) cease to do business.
C. After receipt of such written notice of termination, but prior to the
effective date of such termination, Entel shall continue to perform under the
Agreement unless specifically instructed by Triton to discontinue such
performance. Entel will be entitled to Milestone Rates payable in accordance
with Section 4 hereof, which accrue through the date of discontinuance of
performance on the basis of activities preceding the discontinuance of
performance.
9. CONSENT TO JURISDICTION
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The parties hereby irrevocably (i) submit to the jurisdiction of any
Pennsylvania state court or federal court sitting in the Commonwealth of
Pennsylvania with respect to any suit, action, or proceeding relating to this
Agreement or any related agreement, (ii) waive any objection which they may now
or hereafter have to the laying of venue of any such suit, action, or proceeding
brought in any such court and any claim that any such suit, action, or
proceeding brought in any such court has been brought in an inconvenient forum,
(iii) waive the right to object that any such court does not have jurisdiction
over them, and (iv) consent to the service of process in any such suit, action,
or proceeding by the mailing of copies of such process to the parties by
certified mail to the addresses indicated in this Agreement or at such other
addresses of which the parties shall have received written notice. Nothing
herein shall preclude any party from enforcing any judgment obtained in the
Commonwealth of Virginia in any other jurisdiction.
10. CONDITIONS, REPRESENTATIONS AND WARRANTIES
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A. Representations and Warranties. The parties represent and warrant to
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one another that they have full power and authority to enter into and perform
this Agreement and that execution of this Agreement and their performance of
their respective obligations hereunder do not and will not violate
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any agreement between either such party and any third party or any obligation of
either such party to any third party, including, without limitation, any non-
compete agreement or similar obligation.
▇. ▇▇▇▇▇ warrants that it has complied with all applicable federal, state,
and local registration and licensing requirements to enable it to act as an
independent contractor under the terms of this Agreement.
▇. ▇▇▇▇▇ has the skill necessary to perform the services required pursuant
to this Agreement, and all Site Development Services provided by Entel shall be
timely and performed in a professional manner and shall be of a high grade
nature and quality, commensurate with that which is customary in the industry.
D. Each of the employees and subcontractors utilized by Entel for Site
Development Services hereunder shall be of the highest professional skill and
quality. At any time, Triton has the right to require the removal of any
employee or subcontractor utilized or supervised by Entel, at Triton's sole
discretion.
▇. ▇▇▇▇▇ shall pay all applicable local, state, and federal withholding
and insurance amounts when due and shall comply with all applicable minimum wage
requirements with respect to its employees.
▇. ▇▇▇▇▇ will during the term of this Agreement maintain insurance
policies sufficient to protect its business against all applicable risks.
Without limiting the scope of the foregoing, Entel shall maintain: Commercial
General Liability coverage in an amount of not less than $1,000,000 per
occurrence for bodily injury or death, personal injury, and property damage
liability; and for all motor vehicles used by employees during the course of
this Agreement, liability and property damage insurance in the amount of
$1,000,000. Entel agrees to name Triton as additional insured under the above
coverages. Entel will secure and maintain all required insurance for its
employees during the term of this Agreement. All subcontractors or other agents
hired by Entel under the terms of this Agreement must adhere to the conditions
contained in this paragraph, which shall be paid by subcontractor, and Entel
shall provide Triton with a copy of said insurance. Entel shall provide Triton
with evidence of such insurance prior to commencement of work under this
contract and as otherwise reasonably requested by Triton.
G. Covenants. The parties covenant and agree to use their best efforts to
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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.
11. ASSIGNMENT
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Assigning to Third Parties. Triton may freely assign its rights and
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obligations hereunder. Except as specifically permitted herein, Entel may not
assign or transfer any right, interest, or obligation hereunder to any third
party without the express written consent of Triton, such consent not to be
unreasonably withheld or delayed; provided, however, Entel may freely assign
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this Agreement to any affiliate of Entel upon written notice to Triton. Any
purported assignment in violation of this Section shall be void.
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12. INDEMNIFICATION
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A. Except as a result of Entel's gross negligence or willful misconduct,
Triton agrees to defend and indemnify Entel for and hold it harmless from any
and all claims, actions, damages, or other liabilities (including reasonable
attorneys' fees) incurred by Entel as the result of any act, error, omission,
non-performance by negligence, or wrongful act of Triton arising directly out of
the performance of this Agreement.
B. Except as a result of Triton's gross negligence or willful misconduct,
Entel agrees to defend and indemnify Triton for and hold it harmless from any
and all claims, actions, damages, or other liabilities (including reasonable
attorneys' fees) incurred by Triton as the result of any act, error, omission,
nonperformance by negligence, or wrongful act of Entel arising directly out of
the performance of this Agreement.
13. MISCELLANEOUS
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A. Choice of Law. The Agreement shall be governed by and construed in
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accordance with the laws of the Commonwealth of Pennsylvania, excluding the
conflict of law provisions thereof.
B. Choice of Law. All notices or other communications hereunder shall be
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in writing and shall be deemed to have been duly delivered and effective upon
receipt if personally delivered, or on mailing if mailed by prepaid overnight
express service, addressed to the following (or other addresses as the parties
hereto may designate):
If to Triton:
Triton PCS, Inc.
Drive, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: President
and
Triton PCS, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Manager
If to Entel:
Entel Technologies, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
C. Entire Agreement. This Agreement constitutes the entire agreement of
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the parties with respect to the subject matters addressed, and shall supersede
any and all prior negotiations, understandings, and agreements with respect
hereto.
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D. Modification. This Agreement may be amended only by a written
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instrument executed by an officer or authorized representative of each of the
parties.
E. Binding Effect. The Agreement shall be binding upon and enforceable by
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and inure to the benefit of the successors, assigns, and transferees of the
parties.
F. Further Assurance. The parties shall execute, and deliver such further
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instruments and perform such further acts as may reasonably be required to carry
out the intent and purposes of this Agreement.
G. Severability. In case any term of this Agreement shall be held
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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.
H. Headings. All section and paragraph titles or captions contained in
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this Agreement are for convenience only and shall not be deemed part of the text
of this Agreement.
I. Pronouns. All pronouns and any variations thereof shall be deemed to
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refer to the masculine, feminine, neuter, singular, or plural as the context may
require.
J. Counterparts. This Agreement may be signed in any number of
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counterparts, each of which shall be considered an original and all of which
taken together shall constitute one and the same instrument.
K. Waiver. The failure of either party to insist upon strict performance
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of any obligation hereunder, irrespective of the length of time for which such
failure continues, 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 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.
L. Confidentiality. In order to permit Entel to perform its obligations
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hereunder, Triton may from time to time disclose to Entel confidential or
proprietary information of Triton ("Confidential Information"). Entel shall use
all Confidential Information solely for the purpose of performing its
obligations to Triton under this Agreement, and shall keep confidential and not
disclose to any other person, other than employees or agents of Entel who agree
to be bound by an equivalent undertaking, any Confidential Information. The
foregoing restrictions shall not apply to any Confidential Information:
(i) which is made public by Triton or which otherwise is or
hereafter becomes part of the public domain through no wrongful act,
fault, or negligence on the part of Entel;
(ii) which Entel can reasonably demonstrate is already in
Entel's possession and not subject to an existing agreement of
confidentiality;
(iii) which is received from a third party without restriction
and without breach of an agreement with Triton;
(iv) which is independently developed by Entel as evidenced by
its records; or
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(v) which Entel is required to disclose pursuant to a valid
order of a court or other governmental body or any political
subdivision hereof; provided, however, that, to the extent that it may
lawfully do so, Entel shall first have given notice to Triton and
given Triton a reasonable opportunity to interpose an objection or
obtain a protective order requiring that the Confidential Information
so disclosed be used only for the purposes for which the order was
issued.
14. EFFECTIVE DATE
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Notwithstanding anything herein to the contrary, Triton shall have the
right to terminate this Agreement upon written notice to Entel if Triton has not
acquired the PCS Licenses for the Service Area from AT&T, provided, however,
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that if Triton fails to obtain such PCS Licenses for the Service Area from AT&T,
then Triton shall pay to Entel all professional fees and out-of-pocket expenses
incurred by Entel, in accordance with the payment terms under Section 4, prior
to Entel's receipt of notification from Triton of Triton's failure to obtain the
PCS Licenses.
IN WITNESS WHEREOF, this Agreement has been duly executed as of the
Effective Date.
TRITON PCS, INC. ENTEL TECHNOLOGIES, INC.
By: By:
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Name: Name:
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Its: Its:
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ATTACHMENT A
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Scope of Work
SERVICES: To enable Triton to develop, deploy, and deliver its PCS network,
Entel has been engaged to perform the various Site Development Services as more
specifically described in the Attachments to this Attachment A ("Services").
WORK ITEM Attachment
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Pre-zoning A-1
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Pre-Design A-2
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Site Selection A-3
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Site Acquisition A-4
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Site Survey A-5
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Zoning A-6
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Building Permit A-7
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Phase One/NEPA Environmental Screening A-8
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Project Reporting A-9
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Geotechnical Report A-10
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FAA Survey A-11
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Construction Management A-12
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Project Management A-13
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Materials Management A-14
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DEFINITIONS: For purposes of this Agreement, the following words will have the
following meanings:
"BUILDING PERMIT MILESTONE" means completing to the reasonable satisfaction
of Triton all Building Permit Services described in Attachment A-7
"DELIVERABLES" means completing to the reasonable satisfaction of Triton
all Building Permit Services described in Attachment A-7.
"PSC" Equipment means Triton's towers, antennas, and related equipment
necessary to deploy and deliver PCS from Sites in the MTA/BTA covered by
this Agreement.
"RF" means Wireless Facilities, Inc.
"CONSTRUCTION COMMENCEMENT MILESTONE" means completing all Phase One/NEPA
Environmental Project Reporting, Geotechnical Reports and FAA Survey
services described in Attachments A-8 through A-11.
"CONSTRUCTION COMPLETION MILESTONE" means completing all Construction
Management, Project Management Services and Materials Management set forth
in Attachments A-12 through A-14.
"LEASE MILESTONE" means completing all Site Selection and Site Acquisition
services set forth in Attachments A-3 through A-4.
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"SITE SURVEY MILESTONE" means completing all Pre-Zoning and Pre-Design
services set forth in Attachments A-1 through A-2.
"ZONING MILESTONE" means completing all Site Survey and Zoning Services set
forth in Attachments A-6 through A-7.
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ATTACHMENT A-1
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Pre-Zoning
1. Entel will work with Triton to develop zoning classifications to be
utilized in this phase of the project.
2. Entel will identify, within the BTA coverage area as defined by Triton, all
zoning jurisdictions within the BTA. Entel will obtain zoning maps and
regulations for each jurisdiction, identifying all restrictions, including,
but not limited to height restrictions, setback requirements, fence height
restrictions, tower fall zones, and other restrictions. Entel will obtain
the names and telephone numbers of zoning and building permit contact
persons.
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ATTACHMENT A-2
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Pre-Design
1. Entel will identify and catalog all potential sites available to Triton
from site providers that previously leased space to an Entel client or
expressed an interest in leasing space to Entel ("Friendly Sites").
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ATTACHMENT A-3
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Site Selection
1. RF will issue a search ring based on its preliminary design (such design
will consider Friendly Sites).
2. RF will deliver search rings to Triton, which will then issue search rings
to Entel.
3. Entel must always give preference to sites available under Triton's
existing master lease agreements entered into by Triton ("Master Leases").
If Entel cannot utilize sites under Master Leases, written documentation
must be provided to Triton giving justification as to why sites under
Master Leases cannot be used.
4. Entel will identify three (3) potential candidates for each search ring
within 14 days after receipt of the search ring from Triton. Entel shall
have an additional 5 days to identify potential candidates for additional
search rings if Triton has delivered more than 20 search rings to Entel
within a calendar week. If three (3) such candidates are not available,
Entel will furnish to Triton a written explanation of Entel's reason(s) why
unavailable.
5. Triton will approve or reject candidates or re-design a search ring at
Triton's option.
6. Entel will utilize necessary resources to comply with Triton's established
scheduled time lines in accordance with Section 6 of the Agreement.
7. Entel will provide search ring reports containing the following minimum
information:
A. BTA
B. Site name
C. Acquisition Agent
D. GPS coordinates
E. Site locale
F. Site address or exact location if address unavailable
G. 4 photos taken from site (photos should be taken for a 360 orientation
for a rooftop site)
H. 4 photos taken of the site
I. Name of site owner and manager and address (if applicable)
▇. ▇▇▇▇▇▇'▇ name and address
K. Proposed monthly lease rate/purchase price/term
L. Physical data (overall structure height, height(s) available to mount
antennas, space available for Triton's electronic equipment, distance
for coax from antennas to equipment, tower manufacturer and type,
primary use of structure, etc.). Additional specifics will be
required as needed by Triton.
M. Presence of Transmitters, receivers, or antennas visible in the area
including operating frequencies, photographs
N. Indicate if space available is/has:
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. clean . 24 hrs/7y-day access
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. phone circuits . elevator to equipment room
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. ventilation . adjacent or nearby man-made or natural obstructions
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. loading dock . transmitter shelter area - provide drawings
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. pest infestation . describe exact dimensions and locations
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. air conditioning . electrical service available
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. emergency power . map with street level details showing site location
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. moisture/water . additional information to assist with site evaluation
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ATTACHMENT A-4
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Site Acquisition
Entel shall coordinate closely all site acquisition work with any Third Party.
1. If the site is to be acquired by lease, Entel will be responsible for
securing proper execution by the site owner/landlord of the appropriate
form of lease with respect to each proposed site. Entel must use its best
efforts to use Triton's standard forms of Master Lease Agreement, PCS Site
Agreement, or other lease forms to acquire rights to proposed sites and
will use lease agreements provided by an owner/landlord only as a last
resort. Entel will also use its best efforts to use sites available under
negotiated Master Lease Agreements. Entel will follow all negotiating
guidelines provided by Triton and will not submit any proposed agreement
for Triton's consideration that is clearly outside of the provided
guidelines.
2. Due diligence with respect to title of all sites to be acquired by Triton
(by lease, purchase, or otherwise) shall be performed at the option of
Triton as follows:
a. acquire an ownership and encumbrance report ("O&E Report") from a
nationally known title insurance company satisfactory to Triton which
sets forth the same information as required for an ALTA title
insurance policy described below relating to the proposed site (to the
extent ascertainable by the title company);
b. acquire an ALTA title insurance policy on ground leases, insuring that
Triton is the owner of the leasehold estate created by the lease
covering the site in question, such policy to be issued by a
nationally recognized title insurance company acceptable to Triton and
to be in such amount and to contain such exceptions to title as are
satisfactory to Triton in Triton's sole discretion, and in this regard
the title insurance requirements to be followed by Entel with respect
to the insuring of the leasehold shall be substantially the same as
the title insurance requirements set forth in this Scope of Work for
purchase of sites below;
c. perform or coordinate with the subcontractor or third party ("Third
Party") to ensure that all applicable due diligence tests and studies
have been performed prior to Triton executing the lease to determine
to Triton's reasonable satisfaction that the proposed site is suitable
for Triton's intended use of it, including, but not limited to:
. soil suitability and compaction testing in accordance with
Attachments A-10 and A-11 with respect to ground lease sites and
vacant land sites only; and
. an asbestos survey with respect to sites where Triton's electronic
equipment will be located on or in existing improvements
constructed prior to 1980; and
. a Phase I environmental assessment with respect to ground lease
sites, switch sites, and vacant land sites.
d. In addition, the following tasks shall be performed and confirmed in
writing by Entel, or Entel shall coordinate with a Third Party to
perform and confirm in writing:
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. legal access to the site;
. adequate utility service available to the site consistent with
specifications provided by Triton to Entel;
. necessary building permits or other required governmental approvals
relating to the construction and installation of Triton's equipment
or other improvements at the site;
. no easements, conditions, restrictions, liens, or other matters exist
of record which negatively impact Triton's ability to use the site
for its intended purposes, and that there are no delinquent taxes or
assessments.
. proper zoning for Triton's intended use or whether a zoning change or
variance will be necessary;
. detailed construction drawings and plans and specifications for all
improvements to be constructed or located upon the site obtained by
Entel;
. resolutions or other appropriate authorizations or consents
pertaining to the due execution and delivery of the lease in question
by the lessor/owner of the site .
e. If the site is to be acquired by purchase, Entel shall additionally
. complete all due diligence items to Triton's reasonable satisfaction
which are conditions to Triton's purchase of a site as set forth in a
purchase agreement (which is to be substantially in the form provided
by Triton to Entel), including, without limitation, all requirements
and conditions pertaining to title insurance, survey matters, soil
testing, environmental compliance, governmental authorizations and
approvals relating to the development of the site for Triton's
intended use of it, the availability of adequate utility service and
legal access to the site, and any other matters permitted by the
terms and provisions of a purchase agreement to enable Triton to
reasonably determine whether the site is suitable for Triton's
intended use of it;
. collect from the seller of the site for delivery to Triton all
documents, surveys, drawings, and other information pertaining to the
site which the seller is required to deliver to Triton pursuant to
the terms of a purchase agreement;
. provide preliminary closing statement figures to Triton with respect
to the purchase of the site not less than ten (10) days prior to the
projected closing date; and
. assure that all requirements of the title company with respect to the
issuance of its policy of owner's title insurance are satisfied prior
to the closing date to the extent feasible, but if Triton completes
the purchase
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of a site with outstanding title requirements unsatisfied, and Entel
has so advised Triton in writing thereof, then Entel has no liability
or responsibility to Triton with respect to any such unsatisfied
requirement.
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ATTACHMENT A-5
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Site Survey
1. Entel will obtain and deliver to Triton an ALTA/ACSM minimum standards
survey with such additional items as may be required by Triton, certified
by a licensed surveyor, and site plan/architectural drawings required by
local zoning authorities. (Entel may subcontract this work locally.)
Survey drawings shall include, without limitation:
a. site name and number;
b. legal description of parcel, access road easement and utility
easement;
c. relationship of site parcel to adjacent property boundaries by
distance and direction;
d. site parcel and adjacent parcels by map and parcel number, by deed
book and page, and by ownership;
e. name, telephone number, and address of surveyor and office contact;
f. the location of all matters described in recorded instruments
affecting the site if capable of being shown on a survey;
g. result of flood plain determination.
2. Entel will secure and deliver to Triton any required survey plans, mylars,
exemption plats, or other survey documents required along with any required
signatures.
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ATTACHMENT A-6
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Zoning
1. Entel will prepare and submit all zoning applications and appeals with
required drawings and other related materials and it will obtain any
required zoning approval.
2. Entel will attend all required hearings and represent Triton at Triton's
request.
3. Entel will determine needed compliance with any subdivision regulations for
purchased sites.
4. Entel will involve legal counsel only in zoning situations in which Triton
agrees legal representation is warranted.
5. Entel will provide staffing, at its expense, and the necessary associated
equipment to scan photographs into a document format. If further
enhancement is required to create special presentation quality materials
for a landlord or zoning approval, Triton agrees to the use of a Third
Party at its specific approval and expense.
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ATTACHMENT A-7
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Building Permit
1. Entel shall apply for, coordinate/track, and obtain building permit.
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ATTACHMENT A-8
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Phase One-NEPA Environmental Screening
Within a reasonable period after Triton has approved a primary site candidate
for a search ring:
1. Entel agrees that within its scope of work shall be included a
comprehensive investigation and completion of NEPA checklist for all actual
or potential federal, state, local, or other jurisdictional environmental
requirements, including, but not limited to, the ▇▇▇▇ Title II and Federal
Communications Commission regulations regarding Environmental Assessment
(e.g., FCC Rules on Environmental Impact, 47 C.F.R. 1.11307) referred to as
"Environmental Screening." Triton shall complete, execute, and submit a
fully executed original NEPA Checklist for each site. The NEPA Checklist
shall be in the form acceptable to Triton and shall include, without
limitation, whether a proposed site:
a. is located in an officially designated wilderness area;
b. is located in a designated wilderness preserve;
c. may affect threatened or endangered species of their habitats;
d. may affect site listed on the National Register of Historic Places;
e. may affect Indian religious sites;
f. is located in a flood plain;
g. may involve a significant change in surface features;
h. whether an antenna tower is to be equipped with high intensity white
light would be located in a residential neighborhood.
2. Entel agrees that it shall engage an environmental consultant to perform a
Phase One Environmental Assessment ("Phase One") in accordance with Triton
standards. The results of such assessment shall be delivered to Triton in
writing.
3. At Triton's option, Entel will coordinate activities required to complete
the Environmental Screening requirement on radio frequency emissions to
determine whether the proposed facilities are located where an operator or
transmitter would cause human exposure to levels of radio frequency
radiation in excess of the limits specified in Subsections 1.1310 and
2.1093, 47 C.F.R. (Applications to the FCC for construction permits,
licenses to transmit or renewals thereof, equipment authorizations, or
modifications in existing facilities must contain a statement confirming
compliance, with the radio frequency limits unless the facility, operation,
or transmitter is categorically excluded as discussed in Subsection 1.1307.
Technical information showing the basis for this statement must be
submitted to the FCC upon request). This particular Environmental
Screening requirement shall be sufficient to uncover the impact or
potential impact of any such jurisdictional requirements, including, but
not limited to, regulatory filings, hearings, approvals and/or fees, site
sampling, testing, or relocation of the site requirements.
4. Entel agrees that the results of any and all Environmental Screening and
Phase One performed Third Party shall be reported to Triton. Entel
acknowledges that the timely reporting of such information may influence
the site acquisition decision, and Entel shall pro-actively work in good
faith with Triton to arrive at the optimal site acquisition decision in
light of such information. Entel agrees to seek indemnification for Triton
for the Third Party for any costs, including reasonable attorneys' fees
associated with any environmental remediation, fine, or other penalty
imposed on Triton as the direct or indirect result of Third Party's failure
to detect
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such impact or requirement as described in this Attachment A-8. Should
Entel not obtain this indemnification for Triton in the Entel/Third Party
Agreement, Entel agrees to indemnify Triton for any costs, including
reasonable attorneys' fees associated with any environmental remediation,
fine, or other penalty imposed on Triton as the direct or indirect result
of Third Party's failure to detect such impact or requirement as described
in this Agreement.
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ATTACHMENT A-9
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Project Reporting
1. Entel will provide Triton with weekly reports showing project status. This
status report will be put into a format acceptable to Triton. Report
information will be transmitted to Triton via electronic means. Each
status report must include all the following items. Next to each task must
be included the date it was completed or the expected date of completion.
a. BTA name
b. Cell name
c. Grid ID
d. Site ID
e. Acquisition received search ring
f. Search area report delivered to RF
g. Site approved by RF, Entel & Triton
h. Draft lease/option delivered to Triton
i. Legal review of lease/option complete
j. Lease execution
k. Lease memo recorded
l. Loading study complete
m. Survey and site plan complete
n. Soil borings complete
o. Flood way investigation complete
▇. ▇▇▇▇ and title insurance complete
q. Phase I NEPA checklist complete
r. Zoning approved
s. Building permit obtained
t. Property closed
u. Site released to construction
v. FAA approval
w. Construction started
x. Construction completed
y. Summary report of number of sites at each above stage by completion
2. Additional items to report may be added to the above list as reasonably
determined necessary by Triton.
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ATTACHMENT A-10
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Geotechnical Report
1. Entel will use Third Party to obtain geotechnical report for applicable
land sites. Geotechnical report shall be completed in accordance with
Triton standards and laws of any applicable jurisdiction.
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ATTACHMENT A-11
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FAA Survey
1. FAA Surveys are to be coordinated and tracked by RF, except as otherwise
specified by Triton.
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ATTACHMENT A-12
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Construction Management
PRE-CONSTRUCTION PLANNING
In support of the pre-construction planning requirements, Entel will compete the
following activities:
1. Receive in a recordable form a Memorandum of Lease and any Subordination
and Non-Disturbance Agreements for signature by applicable parties,
substantially in forms provided to Entel by Triton.
2. Conduct construction feasibility assessments with all applicable
subcontractors to assess construction costs, identify potential problems,
and develop the most efficient design for each of Triton's sites.
Coordinate the production and review of all construction drawings to ensure
compliance with Triton's specifications and requirements.
3. Coordinate and manage new service requests, field surveys, and the
installation of power and telephone service to ensure that new utility
service is supplied on time and in compliance with Triton's specifications.
Act as a liaison with local building jurisdiction to ensure that
construction permits are expedited and that questions are answered or
additional information is provided as required.
4. Qualify and select Construction Subcontractors. Develop and deliver
request for quotation packages and systematically evaluate the responses.
Each subcontractor is required to participate in a thorough qualification
process during which Entel will ensure that each is fully insured and has
obtained all required local, state, and federal licenses and
certifications. Review safety programs and records references, and the
financial viability of any subcontractors. Coordinate subcontractor's
selection activities with Triton.
5. Develop a Master Construction Plan that includes a detailed schedule for
each of Triton's sites. Entel shall continuously monitor and update to
ensure compliance with project milestones.
CONSTRUCTION EXECUTION
1. Conduct pre-construction meetings with subcontractors, property managers,
and utility service providers to ensure that construction objectives,
property owner concerns, and site-specific requirements are understood and
agreed upon by all parties involved in the buildout of Triton's network.
2. Provide on-site supervision of all construction activities to minimize
disruption to property owners and to ensure adherence to construction
specifications and standards, and complete construction in compliance with
Triton's construction schedule.
QUALITY ASSURANCE
1. Conduct a thorough quality assurance inspection upon completion of each
site, ensuring that each of Triton's punch list items is resolved within 48
hours.
2. Coordinate and attend site inspections with all local building department
representatives.
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3. Prepare detailed as-built drawings that accurately reflect the installation
at each site.
4. Close out each site by compiling and providing Triton with a comprehensive
site completion package. This package will create an historical record of
everything related to the construction of the site and includes, without
limitation, site identification data, construction permit documentation,
material reconciliation construction test results, site photographs, and
as-built drawings
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ATTACHMENT A-13
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Project Management
Entel will provide the following services:
1. Develop and implement a thorough deployment plan which tracks all
activities associated with site acquisition and construction management for
each site. The deployment plan will clearly articulate schedule
dependencies and critical path elements, identify the allocation of
resources, and update regularly to reflect the actual deployment.
2. Implement a quality assurance program which ensures that all activities are
performed to the highest quality standards.
3. Utilize a comprehensive cost accounting system which will include, at a
minimum, procedures for conducting financial transactions, financial
tracking and management, and comprehensive financial reporting.
4. Implement comprehensive reporting mechanisms so that detailed site progress
is tracked on a daily basis and complete reports are provided when required
by Triton.
5. Implement a comprehensive filing system which ensures that all relevant
site information is organized and available. Utilize electronic means
whenever possible.
6. Manage and coordinate interactions between site acquisition and site
construction. Ensure that both formal and informal communications between
these Milestone Services are effective and in the best interest of Triton.
Manage and coordinate interactions among site acquisition and construction
management and other disciplines involved in the system deployment (e.g.,
RF engineering, network engineering, marketing). Ensure that both formal
and informal communications among these disciplines are effective and in
the interests of Triton.
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ATTACHMENT A-14
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Materials Management
Entel will provide the following services:
1. Provide Procurement Coordinator(s) at the Triton Project office that will
be responsible for all material take-offs, ordering, tracking, coordination
of deliveries, and processing of invoices for all material related to the
construction of the sites. Triton will order the radio equipment.
2. Use primary vendor(s), selected by Triton, to order all standard material
for the construction of the sites.
3. Obtain no less than three (3) bids from manufacturers of custom and
additional items such as electrical, masonry and roofing materials and
miscellaneous hardware.
4. Develop detailed bills of material for each site.
5. Present the bills of materials to Triton for review, approval and issuance
of a purchase order.
6. Place the order with the supplier using the purchase order generated by
Triton.
7. Track the status of the order using both the suppliers material management
system and internal project scheduling
8. Coordinate the time and place for the delivery of material among all
parties and schedule appropriate.
30