SERVICE AGREEMENT BETWEEN
ALLIANCE TOWERS, INC.
AND
CENTRAL WIRELESS, INC.
This Agreement (the "Agreement") is entered into as of April 11th, 2003 (the
"Effective Date") between Alliance Towers Communications, Inc. ("Alliance
Towers"), a corporation organized and existing under the laws of the State of
Florida, whose offices are located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇ and Central Wireless, Inc (Central Wireless), ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇, a corporation organized and existing
under the laws of the State of Utah.
Recitals:
o Alliance Towers is a developer and Alliance Towers of tower facilities for
lease to the wireless industry
o Whereas, Central Wireless has the ability to offer services that include
site acquisition, zoning and engineering management for the development of
tower facilities
o Alliance Towers agrees to compensate (as listed in Exhibit B) Central
Wireless for the services outlined in Exhibit A attached hereto for project
site or sites as delineated in Exhibit "C" hereto attached.
Alliance Towers and Central Wireless, for the consideration hereinafter named,
agree as follows:
1. SCOPE OF AGREEMENT
Alliance Towers hereby engages Central Wireless as an independent contractor to
provide the services which are generally described in Exhibit A attached hereto,
for the development of tower sites as listed in Exhibit "C" and incorporated
herein (hereinafter "Services").
2. TERM OF AGREEMENT
This Agreement shall become effective on the Effective Date and shall continue
in effect for one (1) year with one (1) year automatic renewals, unless
terminated by either party as provided in Article 7 hereof.
3. PAYMENT
Alliance Towers shall pay Central Wireless at the rates set forth in Exhibit B
attached hereto and incorporated herein for rendering the Services. Central
Wireless shall submit to Alliance Towers invoices requesting payment, and such
invoices shall be paid by Alliance Towers within thirty (30) days after receipt.
Invoices shall clearly state the site number which will be assigned to the
project by Alliance Towers.
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Invoices shall be sent to:
Alliance Towers, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Payments shall be sent to:
Central Wireless Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇
Attn.
4. TAXES.
Alliance Towers 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 Alliance Towers and Alliance Towers'
employees. Central Wireless 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 Central Wireless and Central
Wireless's employees. A Certification of Insurance naming Alliance Towers as
additionally insured will be applicable for all projects undertaken by Central
Wireless.
5. CONFIDENTIALITY
5.1. Use of Confidential Information Received. In as much as certain documents,
studies and plans will need to be available to Central Wireless in order to
allow Central Wireless to qualify and certify certain portions of work performed
by Alliance Towers. Alliance Towers may be required from time to time
communicate to Central Wireless, or Central Wireless may otherwise gain access
to, certain confidential business and/or technical information with respect to
Alliance Towers' operations, business plans and/or intellectual property (the
"Information"). Central Wireless shall treat all Information as confidential,
whether or not so identified, and shall not disclose, or permit the disclosure
of, any Information without the prior written consent of Alliance Towers.
Central Wireless shall limit the use and disclosure of the Information within
its organization to the extent necessary to perform the Services and shall
inform all such disclosers of the confidential nature of such Information and of
Central Wireless's obligations under this Paragraph 3. The foregoing obligations
of this Paragraph 3 shall not apply to any Information which has been or is
through no
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fault of Central Wireless hereafter disclosed in publicly available sources of
information. The terms of this Agreement are in addition to the terms of any
nondisclosure agreement currently in effect between Alliance Towers and Central
Wireless, and in the event of any inconsistency between the terms of such
agreements, those terms which are most protective of the Information shall
prevail.
5.2. Confidentiality of Work Product. Central Wireless shall not disclose to any
party, including but not limited to any subcontractor, without the prior written
consent of Alliance Towers any of(i) Alliance Towers' works, discoveries,
inventions and innovations resulting from work performed for clients, (ii) any
proposals, research, records, reports, recommendations, manuals, findings,
evaluations, forms, reviews, information, data, computer programs and software
originated or prepared by Alliance Towers for or in the performance of the
Deliverables (the items listed in clauses (i) and (ii) being hereinafter
referred to collectively and severally as "Work Product") or (iii) the existence
or the subject matter of this Agreement.
5.3. Return of Information and Work Product. In the event of any termination,
expiration or upon request by Alliance Towers, all copies of such Information
and all Work Product shall be immediately returned to Alliance Towers.
6.0 PROPRIETARY RIGHTS
6.1. Rights to Information. Central Wireless acknowledges and agrees that all
Information shall remain the property of Alliance Towers, and no license,
express or implied, to use any of Alliance Towers' intellectual property is
granted under this Agreement.
6.2. When review of documents or plans is required Central Wireless shall
communicate to Alliance Towers or its representatives all facts known to it
respecting such Work Product and /or reviews. Further, whenever requested,
Central Wireless shall sign all lawful papers and otherwise perform all acts
necessary or appropriate to enable Alliance Towers and its successors and
assigns to obtain and enforce legal protections for all such Work Product.
7.0 ALLIANCE TOWERS AND CENTRAL WIRELESS'S WARRANTIES AND COVENANTS.
Central Wireless hereby represents warrants and covenants as follows:
7.1. Central Wireless is financially solvent, able to pay Central Wireless's
debts and possessed of sufficient working capital to complete the Services in
accordance with this Agreement.
7.2. Central Wireless warrants that Central Wireless has complied with all
applicable registration and licensing requirements to enable Central Wireless to
act as an independent contractor under the terms of this Agreement in those
states listed in Exhibit C
7.3. Central Wireless has the experience and skills necessary to perform and
provide the services required pursuant to this Agreement. All Services provided
by Central Wireless shall be performed (a) in a professional manner, with a high
grade, nature and quality, commensurate with that which is customary in the
industry, (b) in compliance with all applicable federal, state and local laws,
rules, regulations and ordinances and Alliance Towers' applicable rules while
Central Wireless is on the Alliance Towers' premises.
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Alliance Towers hereby represents warrants and covenants as follows:
7.1. Alliance Towers is financially solvent, able to pay its debts and possessed
of sufficient working capital to complete the Services in accordance with this
Agreement.
7.2. Alliance Towers warrants that it has complied with or will comply with
prior to beginning any construction activities, all applicable registration and
licensing requirements to enable Central Wireless to do business in the states
listed in Exhibit C. Alliance Towers shall furnish proof of such compliance to
Central Wireless upon request.
7.3. Alliance Towers has the experience and skills necessary to perform and
provide the services required pursuant to this Agreement. All Services provided
by Alliance Towers shall be performed (a) in a professional manner, with a high
grade, nature and quality, commensurate with that which is customary in the
industry, (b) in compliance with all applicable federal, state and local laws,
rules, regulations and ordinances and Central Wireless's applicable rules while
Alliance Towers is on Central Wireless's premises.
The provisions of this Section shall survive termination of this Agreement.
8.0 TERMINATION
Alliance Towers, without prejudice to any right or remedy it may have due to any
failure of Central Wireless to perform its obligations under this Agreement,
may, at any time, terminate the performance of work hereunder, in whole or in
part, upon fifteen (15) days written notice to Central Wireless specifying the
date upon which termination becomes effective. In the event of any such
termination, Central Wireless shall be entitled to payment for services rendered
prior to the effective date of termination; provided, however, that any such
payment shall be subject to any provision for the limit of expenditures set
forth elsewhere in this Agreement. Such payment shall constitute full settlement
of any and all claims of every description, including profit.
Central Wireless, without prejudice to any right or remedy it may have due to
any failure of Alliance Towers to perform its obligations under this Agreement,
may terminate the performance of work hereunder, in whole or in part, upon
fifteen (15) days written notice to Alliance Towers specifying the date upon
which termination becomes effective should Alliance Towers default upon any
provisions contained in this Agreement, herein. Should Central Wireless wish to
terminate this Agreement for convenience, it shall notify Alliance Towers and
allow ninety (90) days before termination becomes effective to allow Alliance
Towers to seek another qualified entity to complete the work.
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9.0 LAWS, RULES AND REGULATIONS
Alliance Towers and Central Wireless shall comply at their own expense with the
provisions of the Fair Labor Standards Act of 1938, as amended and all other
applicable state and municipal requirements and those of state and federal laws
applicable to an employer of labor or otherwise.
10.0 WORKMANSHIP
The services to be provided by Central Wireless under this Agreement shall
proceed with promptness and diligence and shall be executed to Alliance Towers'
satisfaction in accordance with the highest professional standards in the field.
Central Wireless shall execute all work in a diligent, professional manner and
to telecommunication industry standards. All work will be done in accordance
with each particular project's specifications and drawings and all local and
state codes.
11.0 INSURANCE
Both Alliance Towers and Central Wireless warrant that they shall maintain
insurance policies that are sufficient to protect the businesses against all
applicable risks. Without limiting the scope of the foregoing, they shall both
maintain insurance coverage in an amount not less than $1,000,000 per occurrence
with a $5,000,000 aggregate for bodily injury or death, personal injury and
property damage liability. Alliance Towers, its officers, directors, and
employees shall be named as additional insured's with a full waiver of
subrogation by Central Wireless for such insurance. Insurance Certificates
naming Central Wireless as additionally insured to be furnished upon request.
12.0 INDEMNIFICATION
Each party shall, to the fullest extent permitted by law, indemnify, defend and
hold harmless the other parties to this Agreement, and the directors, officers,
employees, agents and consultants of each party and their assigns (each
an"Indemnitee") from and against any and all suits, actions, legal, or
administrative proceedings, claims, demands, damages, liabilities, interest,
attorney's fees, costs, expenses, and losses of whatsoever kind or nature in
connection with or incidental to the performance of this agreement, whether
arising before or after completion or the Work hereunder and in any manner
directly or indirectly caused, occasioned, or contributed to in whole or in
part, or claimed to be caused, occasioned, or contributed to in whole or in
part, by reason of any act, omission, fault, or negligence whether active or
passive by such indemnifying party or its directors, officers, employees, agents
or consultants (collectively the "Indemnitor")
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13.0 INDEPENDENT CONTRACTOR
The parties expressly intend and agree that Central Wireless is acting as an
independent contractor and not as an agent or employee of Alliance Towers.
Central Wireless retains sole and absolute discretion, control and judgment
regarding the manner and means of performing and providing the Deliverables,
except as to the policies and procedures set forth herein. Central Wireless
understands and agrees that it shall not be entitled to any of the rights and
privileges established for Alliance Towers' employees, including but not limited
to retirement benefits; medical, life insurance or disability coverage;
severance pay; and paid vacation or sick pay. Central Wireless understands and
agrees that Alliance Towers will not pay or withhold from the compensation paid
to Central Wireless any sums customarily paid or withheld for or on behalf of
employees for income tax, unemployment insurance, social security, workers
compensation or any other withholding tax, insurance or payment, and all such
payments as may be required by law are the sole responsibility of Central
Wireless. Central Wireless agrees to hold Alliance Towers harmless against and
indemnify Alliance Towers for any of such payments of liabilities for which
Central Wireless may become liable with respect to such matters. This Agreement
shall not be construed as a partnership agreement. Alliance Towers shall have no
responsibility for any of Central Wireless's debts, liabilities or other
obligations or for the intentional, reckless or negligent acts or omissions of
Central Wireless or Central Wireless's employees or agents.
14.0 PROPERTY
14.1 Title to all property whether intellectual or physical owned, rented or
leased by Alliance Towers (or any Affiliate of Alliance Towers) and furnished to
Central Wireless shall remain with Alliance Towers (or the Affiliate).
14.2 Title to all property whether intellectual or physical owned, rented or
leased by Central Wireless (or any Affiliate of Central Wireless) and furnished
to Alliance Towers shall remain with Central Wireless (or the Affiliate).
15.0 PREMISES RULES AND SECURITY REQUIREMENTS
The employees and agents of each party, while on the premises of the other,
shall comply with all rules and regulations in effect at such premises,
including security requirements.
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16.0 PUBLICITY
Central Wireless shall not issue or release for publication any articles or
advertising or publicity matter relating to the work to be performed hereunder
or mentioning or implying the name of Alliance Towers, or any affiliate of
Alliance Towers or any of their personnel, unless prior written consent is
granted by Alliance Towers.
17.0 NOTICE
All notices shall be in writing and sent by registered or certified mail,
postage prepaid, or via facsimile with confirmation to the following addresses:
Notices to Alliance Towers shall be addressed to:
Alliance Towers, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇
Attn. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Notices to Central Wireless shall be addressed to:
Central Wireless, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇
Attn. ▇▇▇▇▇▇▇ ▇. Brand
If a party changes its address during the terms hereof, it shall so advise the
other party in writing and any notice thereafter required to be given shall be
sent according to the new information.
18.0 DISPUTES
Any claim for equitable adjustment to the Contract price or time of performance
which cannot be resolved y negotiation shall be considered a dispute within the
meaning of this clause.
If for any reason the Alliance Towers and Central Wireless are unable to resolve
a claim for an equitable adjustment, Alliance Towers or Central Wireless shall
notify the other party in writing that a dispute exists and request or provide a
final determination by Alliance Towers. Any such request by Central Wireless
shall be clearly identified by reference to this clause and shall summarize the
facts in dispute and Central Wireless's proposal for resolution.
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Alliance Towers shall, within thirty (30) days of any request by Central
Wireless, provide a final written determination setting forth the contractual
basis for its decision and defining what contract adjustments it considers
equitable. Upon Central Wireless's acceptance of Alliance Towers' determination,
the Contract will be modified and the determination implemented accordingly or,
failing such agreement, Alliance Towers shall pay such amounts and/or revise the
time for performance of the Work in accordance with the Alliance Towers' final
determination.
If Alliance Towers' final determination is not accepted by Central Wireless, the
parties The parties agree that in the event of any dispute between the Alliance
Towers and the Central Wireless, each expressly waives any and all rights to a
trial by jury and agrees that said dispute shall be submitted to meditation
before a neutral mediator selected by and mutually agreeable to the parties. The
parties agree that the mediator will be selected to conduct such mediation
within sixty (60) days of either party giving notice to the other of the dispute
for mediation.
In the event that mediation is unsuccessful, the parties agree to
submit the dispute to binding arbitration. The parties agree that once notice of
claim for arbitration is delivered to the other, the parties shall select a
single, mutually acceptable, arbitrator to hear the dispute. In the event that
the parties are unable to reach agreement on the selection of a single
arbitrator, each party shall, within 30 calendar days, appoint one arbitrator
and notify the other party of its selection. Within 30 calendar days, or any
mutually agreeable time period thereafter, the two arbitrators shall select a
third, neutral, arbitrator. The arbitration shall then be conducted by the panel
of the three arbitrators. If either party refuses or neglects to appear or
participate in arbitration proceedings, the arbitrators are empowered to decide
the controversy in accordance with whatever evidence is presented. The
arbitrators are authorized to decide all jurisdictional issues, and award to any
party or parties such sums as such arbitrators shall deem proper to remedy the
injury proven, including, if appropriate, the costs of arbitration, reasonable
attorney's fees and expenses.
Arbitration shall be held in accordance with Florida Arbitration
Regulations. The parties expressly agree to consolidation of separate
arbitration proceedings. Any judgment upon the award rendered by the arbitrators
may be entered by any court with jurisdiction. The arbitration will be held in
Sarasota County, FL.. The arbitrators are not empowered to award damages in
excess of compensatory damages and each party waives any damages in excess of
compensatory damages. The arbitrators are expressly empowered to award attorney
fees to the prevailing party
19.0 ASSIGNMENT
Central Wireless shall not assign any of its rights or obligations under this
Agreement and shall not subcontract any of the Services to be performed
hereunder without the prior written consent of Alliance Towers. This Agreement
shall be binding upon and inure to the benefit of the parties hereto, their
successors and permitted assigns. Alliance Towers may assign its rights, duties
and obligations under this Agreement to any affiliates of Alliance Towers or to
any partnership or partnerships in which Alliance Towers or any of its
affiliates has or will have any interest.
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20.0 WAIVER
No provision of this Agreement shall be deemed waived, amended, or modified by
either party unless such waiver, amendment or modification is in writing and
signed by the party against whom it is sought to be enforced.
21.0 BANKRUPTCY
Either party may terminate this Agreement by notice in writing in the event that
the other makes an assignment for the benefit of creditors, or admits in writing
inability to pay debts as they mature, or if a trustee or receiver of the other,
or any substantial part of the other's assets, is appointed by any court.
22.0 ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between Alliance Towers and
Central Wireless with respect to the subject matter hereof and shall not be
amended or modified without specific written agreement to that effect signed by
both parties. No oral statement of any person whatsoever shall, in any manner or
degree, modify or otherwise affect the terms and provisions of this Agreement.
To the extent to which any provision of Exhibit A conflicts in any way with any
provision of the text of the contract in chief, the provisions of the contract
in chief shall govern.
23.0 AUDITS
Central Wireless shall maintain complete records of all costs reimbursable by
Alliance Towers under the terms of this Agreement. All such records shall be
maintained in accordance with recognized accounting practices. Alliance Towers
shall have the right, through its accredited representatives, to examine and
audit such records at any reasonable time. The correctness of Central Wireless's
▇▇▇▇▇▇▇▇ shall be determined by such audits.
24.0 SUBCONTRACTING
Central Wireless shall not, without the prior written consent of Alliance
Towers, subcontract any portion of the work covered by this Agreement, except
with prior written agreement from Alliance Towers.
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25.0 ARTICLE HEADINGS
The headings of the several Articles are inserted for convenience of reference
only and are not intended to be a part of or to affect the meaning or
interpretation of this Agreement.
26.0 SUCCESSORS AND ASSIGNS
This Agreement shall inure to the benefit of and shall be binding upon the
parties hereto and their respective successors and assigns.
27.0 SEVERABILITY
If any provision, or any portion of any provision, contained in this Agreement
is determined to be invalid under any applicable statute or rule of law, then it
shall only to that extent be deemed omitted. Additionally, the parties agree
that if any provision of Exhibit A is addressed wholly or in part by any
provision(s) in the text of the contract in chief that provision of Exhibit A is
deemed to be severable and is omitted.
28.0 SURVIVABILITY
The terms and conditions of this Agreement that by their sense and context are
intended to survive after performance hereunder shall survive the termination or
expiration of this Agreement, including but not limited to Articles 4, 5, 6
and18.
Alliance Towers, Inc. Central Wireless, Inc.
Name: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------- ---------------------
Title: CEO Title: CEO
-------------------- --------------------
Date: April 11, 2003 Date: April 11, 2003
-------------------- --------------------
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EXHIBIT A
SCOPE OF SERVICES
1. SITE ACQUISITION AND ZONING SERVICES
a. Search Area Investigation
b. Visit each search area for the purpose of identifying and cataloging any
viable candidate(s) described below.
c. Prioritize and submit up to three viable candidates per Search Area Request
Form (SARF). A complete Site Candidate Information Package (SCIP) will be
completed for each candidate. A viable candidate meets the following
criteria:
Meet or exceed RF design requirements
Determine that the respective property owner(s) are interested in executing
a long-term lease agreement.
Site can be reasonably zoned and permitted within the local jurisdiction
for the intended purpose and within the proposed timeline (copy of zoning map
and copies of applicable Telecommunication Ordinance pertaining to the site to
be provided).
Site can be constructed with reasonable cost (per capital budget) and
timeline (project schedule).
Candidate prioritization based on all three disciplines - RF, Construction
and Acquisition (leasing and zoning) for costs and timeline. Contractor will
submit SCIP within 10 business days of SARF release.
2. LEASING
a. Acquire the following information/documents on the preferred Candidate (as
applicable):
b. Existing drawings/easement (verification of legal access to site)
/structural studies
c. Deed, property tax records/confirm there is (are) no delinquent tax or tax
liens on the property
d. Environmental statement/historical data
e. Obtain Corporate Resolution (if a corporation), including Document of
Resolution authorizing the transfer of land rights Authorizations, as
required to submit for zoning and building permits
f. Coordinate and obtain owner approval for drive testing, as required
g. Obtain Entry and Testing Agreement signed by owner
h. Contractor will use best reasonable efforts to obtain draft leases within
scheduled timeframes.
i. Coordinate with Legal Department any changes to Standard Lease or License
Agreement, including special access limitations, construction requirements
or special requests by Client or any other pertinent information pertaining
to the leasehold interest. Client will use best and reasonable effort to
review and return leases to Contractor.
j. As Client's agent, negotiate, coordinate and acquire all easements required
for ingress/egress, utility routing and installation.
k. Contact for access to site 7days/24hours.
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l. Coordination of Full Title Search and Title Commitment, including issuance
of Policy (if required). Actual third party Title Search fees will be the
responsibility of the Client.
3. Zoning
a. Provide:
Zoning process required, including timeline and deliverable for each step.
Identify jurisdiction, hearing schedule, appeal process; Photo simulations
or mock display, as required ;( actual costs to be paid by client) Zoning
package preparation and submittal - (copies of all documents to Client);
Attend all meetings and hearings required to obtain zoning and building
permits; Provide expert zoning testimony as required; (actual costs to be
paid by client)
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EXHIBIT B
COMPENSATION
The compensation for services is as follows;
SITE ACQUISITION $8500 PER SITE
ZONING /ADMINISTRATIVE REVIEW ONLY $1500 PER SITE
ZONING/ FULL PROCESS WITH HEARINGS $5000 PER SITE
Note: Site Acquisition with Admin Review $10,000. Site Acquisition with Hearings
$13,500
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EXHIBIT "C"
PROJECT SITE LISTINGS
SITE ID NAME STATE COUNTY LAT LONG HT
----------- ---------- --------- ----------- ------------ ------------ -----
0304-015 Ousley GA ▇▇▇▇▇▇ N 30 53 54 W 83 27 06 280
----------- ---------- --------- ----------- ------------ ------------ -----
0304-016 Cool GA ▇▇▇▇▇▇ N31 00 11 W 83 52 38 300
----------- ---------- --------- ----------- ------------ ------------ -----
▇▇▇▇-▇▇▇ ▇▇▇▇▇▇ ▇▇ COLQUIT N 31 17 29 W 83 40 23 280
----------- ---------- --------- ----------- ------------ ------------ -----
0304-018 Omega GA TIFT N 31 22 25 W 83 34 22 280
----------- ---------- --------- ----------- ------------ ------------ -----
▇▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ COLQUIT N 31 09 05 W 83 40 59 280
----------- ---------- --------- ----------- ------------ ------------ -----
0304-020 ▇▇▇▇▇ GA COLQUIT N 31 06 45 W 83 47 23 280
----------- ---------- --------- ----------- ------------ ------------ -----
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