EXHIBIT 10.91
MASTER AGREEMENT
RELATING TO WIRELESS COMMUNICATIONS SITES
BETWEEN
US WIRELESS CORPORATION
AND
AMERICAN TOWER, L. P.
This MASTER AGREEMENT RELATING TO WIRELESS COMMUNICATIONS SITES (this
"Agreement") dated May 25, 2000 (the "Execution Date"), is made between U.S.
WIRELESS CORPORATION, A Delaware corporation having its principal place of
business at 2303 Camino Ramon, San Ramon CA 94583, (hereinafter referred to as
"USWC") and AMERICAN TOWER L. P., a Delaware Limited Partnership by, through and
under ATC GP, Inc., a Delaware corporation, its sole general partner, a Delaware
corporation, both having their principal place of business at 116 Huntington
Avenue, Boston, Massachusetts 02116 (hereinafter referred to as "ATC"), for the
performance of services and supply of materials in accordance with the terms and
conditions hereinafter set forth. USWC and ATC are herein after referred to
collectively as the "Parties" and individually as a "Party".
1. SCOPE OF AGREEMENT.
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(a) ATC and USWC may mutually agree that ATC shall provide certain
services and materials (collectively, the "Work") for various wireless
communications sites located within the United States ("Sites") as set forth
herein and in Project Addendums (as hereinafter defined), and any written
amendments thereto, executed by both parties from time to time. USWC agrees that
ATC shall have a preferential right to provide USWC's services for its network
in accordance with the terms of this Agreement including radio frequency design,
radio frequency engineering, Site identification, Site acquisition and
development, Site zoning and permitting, Site construction and installation
management, component purchases, and equipment installation during the Term of
this Agreement. Notwithstanding anything to the contrary, this Agreement shall
only be applicable to the deployment or building out of location technology by
USWC or its Affiliates (for use in services which include, but are not limited
to, caller pinpointing, location tracking, vehicle and human tracking, 911 and
411 assistance and other geographic location needs) ("Location Technology
Build-Out").
(b) When USWC desires or is in need of any of the foregoing types of
services or materials described in Section 1(a) with respect only to a Location
Technology Build-Out, USWC shall submit a proposed Project Addendum (as
hereinafter defined) to ATC in the form attached hereto as Exhibit A together
with the desired the scope of Work required, particular equipment installation
specifications and plans, and the desired schedule for completion. In the event
that ATC elects to negotiate for the performance of the proposed Work, ATC shall
return a written notice of its intention to negotiate to perform the Work to
USWC in the form attached hereto as Exhibit B, together with a cost proposal, no
more than twenty (20) days following ATC's receipt of the proposed Project
Addendum request from USWC. For a period beginning on the date that ATC receives
USWC's proposed Project Addendum and for 60 days thereafter unless ATC elects
not to negotiate or does not respond within such twenty (20) day period, ATC and
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USWC agree to negotiate, exclusively and in good faith, the execution of a final
project addendum setting forth the specific terms relating to the affected MSAs
and/or RSAs (as defined by the Federal Communication Commission) ("Project
Addendum"), including, without limitation, the scope of Work which ATC will
provide and the cost of the services performed by ATC for the performance of
Work. Except as otherwise expressly provided herein, if any of the terms of any
applicable Project Addendum(s) conflict with the terms of this Agreement, the
Project Addendum(s) shall supersede and control. Upon execution of a Project
Addendum by authorized representatives of both parties to this Agreement, ATC
shall perform the Work described therein in accordance with the terms of the
payment obligations in Schedule 2 to the applicable project Addendum and the
scope of Work outlined in Schedule 1 to the applicable Project Addendum, both of
which shall be attached to each Project Addendum and specifically made a part of
such Project Addendum. ATC and USWC hereby acknowledge and agree that the
foregoing negotiations shall be arms-length negotiations and that all Work will
be performed at a market rate. Nothing in this Section 1(b) shall be interpreted
to restrict USWC from meeting with other companies to educate itself about the
services industry and USWC agrees that it shall use its reasonable efforts to do
so.
(c) In the event that the parties hereto are unable to come to a mutual
agreement with respect to a Project Addendum after the good faith negotiation
period set forth in Section 1(b), USWC shall provide copies of all solicited
bids from other companies for the performance of the identical scope of work to
ATC. In no event shall USWC provide less than two (2) different bids (excluding
discounts which may be offered by such companies or available from time to time)
for each applicable service category to ATC from qualified companies financially
and operationally capable of performing the applicable services in a timely
manner and ATC shall be granted the exclusive right and option to provide the
Work for USWC for the identical scope of work requested by USWC and reflected in
the applicable bids for compensation that is equal to the lesser of (i) the
average all such received bids (but in no event less than two for each service
category) plus five percent (5%), or (ii) the lowest price last offered to USWC
by ATC for the applicable proposed Project Addendum for the identical scope of
Work attendant thereto (collectively, "Right of First Refusal"). ATC shall
exercise its Right of First Refusal rights hereunder by providing written notice
of its acceptance within five (5) business days following its receipt of the bid
amounts and scope of work ("Notice of Exercise"). Upon such Notice of Exercise,
ATC and USWC agree to diligently and in good faith negotiate and execute a
Project Addendum with respect to such Work in accordance with the terms and
conditions of this Agreement. In the event that ATC declines the opportunity to
perform the Work pursuant to the Right of First Refusal, USWC shall have the
right to engage other contractors to perform the Work, or portion thereof, with
respect to the affected market so long as the terms and conditions of such
engagement are no less favorable to USWC than the terms and conditions offered
to ATC hereunder pursuant to the Right of First Refusal.
(d) Failure by either USWC or ATC to adhere to the provisions of this
Section 1 in good faith shall be deemed a material default by USWC or ATC under
this Agreement.
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2. TERM. This Agreement shall be effective from the Execution
Date and shall continue in effect for three (3) years, unless sooner terminated
pursuant to Section 10.
3. PRICE AND PAYMENTS. USWC hereby agrees to pay ATC the amounts on a
per-Site basis agreed to between the parties as set forth in the applicable
Project Addendum executed by both parties hereto and any additional payments
pursuant to any applicable Project Addendum relative to a particular Site.
Unless otherwise provided in the applicable Project Addendum, ATC shall submit
invoices (in a format reasonably acceptable to USWC) for Work performed incurred
on a monthly or basis with respect to completed milestones as determined by the
Parties in the applicable Project Addendum. USWC shall remit payment for Work
performed by ATC and for reimbursable expenses incurred by ATC for all excess
Work authorized by the applicable Project Addendum or as mutually agreed in
writing by the Parties hereto, within thirty (30) days of receipt of each
invoice less any payments which are in good faith disputed, which will be
payable within 30 days of resolution of such dispute. ATC shall be entitled to
assess a one percent (1%) per month late fee on all outstanding invoices
properly issued, aged over 30 days and not in dispute.
4. GENERAL DUTIES AND RESPONSIBILITIES OF CONTRACTOR.
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(a) ATC, at its own cost and expense, shall provide all materials and
labor for the performance of the Work, as set forth in any applicable Project
Addendum. Work may include, as further defined in a particular Project Addendum,
any of the following or other services: RF design, RF engineering, site
location; acquiring or obtaining leases for Sites for USWC; obtaining necessary
governmental authorizations, zoning, and other approvals; Site construction
(also known as build-to-suit sites); construction and installation management;
provision of components, antennas, lines and other equipment; and shelter,
cabinet and antenna and lines installation; and all work necessarily related
thereto.
(b) The services provided hereunder shall be performed by ATC employees
or qualified professionals selected by ATC; provided, however, that USWC
reserves the right from time to time, for reasonable cause, to request that ATC
cease utilizing or not retain any particular company or individual subcontractor
upon written notice to ATC thereof. With respect to subcontractors hired by ATC,
they shall be paid by ATC or USWC in accordance with the applicable Project
Addendum hereto. All agreements between ATC and entities or subcontractors
engaged by ATC to perform any services or supply materials in connection with
the Work shall be in writing, a copy of which shall be provided to USWC upon
USWC's written request with financial terms redacted as deemed reasonably
necessary or desirable by ATC. ATC shall coordinate all Work to be performed,
testing, inspections and progress reports with USWC and its representatives as
set forth in the applicable Project Addendum.
(c) ATC's performance of the Work hereunder shall be of good
quality and in conformance with the applicable Project Addendum.
(d) ATC shall be responsible for and shall coordinate all means,
methods, techniques, sequences and procedures, and all portions of the Work in
accordance with the terms of this Agreement and the applicable Project Addendum.
(e) ATC shall keep USWC informed of the progress and quality of the
Work. ATC shall have sole responsibility to coordinate the Work and timely
complete the Work in accordance with the Project Addendum, subject to Section
19(i), Force Majeure, set forth herein.
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(f) ATC shall pay all sales, use, and similar or other taxes imposed on
the Work or any services or materials provided by ATC or obtained by ATC from
third parties; provided, however, that ATC shall not be responsible for any such
taxes with respect to services or materials to be paid for or reimbursed by USWC
pursuant to the applicable Project Addendum nor for USWC's income taxes,
franchise taxes or any property taxes imposed on Sites as constructed and
installed for USWC.
(g) ATC shall comply with all laws, ordinances, rules, regulations and
lawful orders of public authorities relating to the Work applicable to ATC in
the performance of its Work hereunder (collectively, "Laws").
(h) Upon completion of any Site or upon termination of this Agreement
(whether as to any Site or all Sites under any Project Addendum) and final
payment by USWC and following USWC's written request, ATC shall return all
Designs and Drawings (as defined in Section 9), files, documents, written
materials, drawings, specifications, and information (including, without
limitation, information electronically stored) relating to the Site(s) and Work
that are designated as being confidential or proprietary in accordance with
Section 9 to USWC; provided, however, that any such documents or information
required by ATC to perform Work under any different Project Addendum or
generally required by ATC to perform Work under this Agreement may be retained
by it until the end of the term of this Agreement, when, following USWC's
written request, the same shall be returned by ATC to USWC
5. DUTIES AND RESPONSIBILITIES OF USWC.
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(a) USWC will not unreasonably delay any decision to be made by it in
connection with any approval or direction to ATC pursuant to this Agreement or
any Project Addendum and subject to the provisions of Section 8(b). USWC's
representatives (and other agents of USWC approved by such USWC representatives)
shall be entitled to access to the Site at any time for inspection or any other
purpose; provided, however, that USWC shall not unreasonably delay, hinder or
interfere with the performance of the Work.
(b) USWC shall cooperate with ATC in ATC's performance of the Work.
6. SPECIFIC PROVISIONS RELATING TO THE WORK TO BE PERFORMED UNDER
ANY PROJECT ADDENDUM.
(a) The Parties hereto acknowledge and agree that regardless of whether
ATC performs the Work hereunder or in the event that such Work is performed by a
third party or USWC subject to ATC's rights hereunder, tower facilities owned or
leased by ATC shall be USWC's preferred tower facility locations and that USWC
(or ATC, if applicable) shall utilize its good faith efforts to maximize the use
of such ATC facilities in the design of the USWC location network system.
Notwithstanding anything to the contrary in this Agreement, this preference
shall not be construed to require USWC to utilize an ATC tower facility that is
not the best technical choice for USWC, which is at USWC's sole discretion.
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(b) Notwithstanding anything to the contrary in any Project Addendum,
the following provisions shall be applicable only to BTS Sites (as hereinafter
defined):
(i) Following the completion of the Work at any Site designated as a
build-to-suit site pursuant to the applicable Project Addendum, in which ATC
shall build a Tower for USWC where a structure does not currently exist ("BTS
Site"), ATC shall deliver to USWC a certificate based on its good faith belief
that such BTS Site is completed ("BTS Completion Certificate"). USWC shall have
five (5) business days (the "Inspection Term") after receipt of the BTS
Completion Certificate, to inspect the corresponding BTS Site and to accept and
return the BTS Completion Certificate to ATC or deliver to ATC a written notice
(the "Disagreement Notice") describing in reasonable detail the reasons for
USWC's good faith determination that such BTS Site does not comply with the
provisions of this Agreement or the applicable Project Addendum, indicating the
actual deviation. USWC will be deemed to have accepted the BTS Completion
Certificate upon failure to issue a Disagreement Notice within the Inspection
Term, and for purposes of this Agreement and the applicable Site Licenses, the
License Commencement Date shall be the date of expiration of the Inspection
Term. In the event that USWC delivers to ATC a Disagreement Notice and ATC
determines in good faith that the reasons for disagreement expressed by USWC in
a Disagreement Notice are valid, ATC shall evaluate the deviations expressed by
USWC in the Disagreement Notice and shall make the corresponding modifications
to the BTS Site, if necessary, within a time period to be determined by ATC and
USWC, based on ATC's determination of the work required. The applicable site
schedule will be modified accordingly. Upon completion, ATC will issue a new BTS
Completion Certificate to USWC under the terms specified in this subsection. In
the event ATC determines in good faith that the reasons for disagreement
expressed by USWC in a Disagreement Notice are not valid, the parties shall
treat the matter as a dispute under Section 12(b).
(ii) Notwithstanding anything to the contrary in this Agreement, ATC
may elect not to construct any particular BTS Site, for any reason, upon written
notice of such rejection from ATC to USWC within forty-five (45) Business Days
following USWC's selection of a BTS Site pursuant to the procedures set forth in
any applicable Project Addendum. Further, ATC may also elect not to construct
any BTS Site at anytime after USWC has selected or ATC has accepted such BTS
Site but prior to the commencement of construction of the tower structure:
(x) in the event that ATC determines, in good faith, that the
aggregate construction and development cost (excluding land purchase
and/or license costs) for such BTS Site may exceed Two Hundred Thousand
Dollars ($200,000);
(y) If ATC is unable, after exercising commercially reasonable
good faith efforts, to secure a ground lease that does not provide for
any form of revenue sharing with owner or payments based upon third
party tenant leasing or contains adverse subleasing restrictions
(including, without limitation, an obligation to obtain prior consent
from such owner) or a prohibition against subleasing to third party
tenants;
(z) If despite ATC's diligent efforts (including but not
limited to the timely filing of all applications), zoning approval or
necessary permits are not issued by the applicable governmental
authorities or cannot be or is not completed within 180 days.
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In the event of any such rejection, USWC will pay ATC for the applicable
Milestones completed as set forth in the applicable Project Addendum and at a
time and materials rate for any uncompleted Milestones (but in no event to
exceed the full Milestone payment associated with such Milestone in the event
that it had been completed). Any BTS Site rejected by ATC pursuant to this
Section 6(b)(ii) shall no longer be a Site for the purposes of this Agreement.
(iv) ATC may, in its sole discretion, elect to exceed any
required specifications and standards, at its own cost, so long as such excess
does not adversely affect USWC or the operation or installation of USWC's
equipment; provided, however, that the parties hereto acknowledge and agree that
each tower structure shall be a multi-tenant tower or antenna structure capable
of accommodating USWC's equipment installation and no less than four (4)
additional broadband tenants (unless otherwise agreed to by ATC, in its sole
discretion). In addition to the foregoing, ATC shall retain the right, in its
sole discretion, to construct such towers as monopole, guyed or self support
towers.
(c) With respect to any Site owned, operated or under construction by
ATC (including BTS Sites) that is selected by USWC in accordance with the
procedures set forth in the applicable Project Addendum, (i) ATC and USWC (or
one of their Affiliates as such term is defined in the MLA) shall execute a site
license for each such Site ("Site License") in accordance with that certain
Master Tower Space License Agreement dated May 25, 2000 ("MLA"), (ii) ATC shall
provide copies of any documents reasonably requested by USWC with respect to
such Site reasonably in ATC's possession, unless deemed confidential or
proprietary by ATC, and (iii) ATC shall provide access to USWC to such Site
prior to USWC's installations in accordance with the terms as conditions of the
applicable Site License. In addition to the foregoing, ATC will notify USWC of
any structural analysis of or modifications to the tower structure at any Site
or proposed Site which is owned, operated or under construction by ATC (other
than BTS Sites, which will not require any such modifications) ("ATC Existing
Site") which may be necessary for the accommodation of USWC's equipment as set
forth in the applicable Project Addendum prior to the selection of a Site.
(d) With respect to all Sites, ATC shall obtain all necessary zoning
approvals and permits in accordance with the applicable project Addendum;
provided, however, that USWC shall reasonably and promptly cooperate with ATC's
efforts to obtain such approvals and permits, at the request of ATC. The Parties
agree and acknowledge due to the flexibility of the USWC system the objective is
to use Sites that do not require any approvals or permits, and to that extent
Site selection should be steered away from those Site in which approval and
permits are necessary.
7. CHANGES IN THE WORK. Changes in the Work shall be done only pursuant
to a written Change Order (herein so called) executed by USWC and ATC, stating
their agreement on all of the following: (i) a change in or addition to the Work
as set forth in the applicable Project Addendum and this Agreement, (ii) the
amount of adjustment, if any, in the payment due to ATC for the Work thereunder,
and (iii) the extent of adjustment, if any, in the time for performance of the
Work.
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8. TIME; PENALTY.
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(a) ATC shall undertake the Work in accordance with the Project
Addendum scheduling, as expeditiously as is consistent with reasonable skill and
care and orderly progress of the Work.
(b) If the Work to be undertaken by ATC under this Agreement is delayed
by an act or failure to act by USWC or any separate contractor engaged by USWC,
or by changes ordered in the Work, in accordance with Section 7 herein, and not
caused by an act or omission of ATC or any of its subcontractors, any dates
specified for performance by ATC in the applicable Project Addendum shall be
reasonably extended.
(c) Subject to Section 19(i), a timetable shall be mutually agreed to
between ATC and USWC with respect to each Site which graphically describes the
time periods and completion dates for each of the activities necessary to
complete each Site (each a "Site Schedule"), as each such Site Schedule may be
amended from time to time in accordance with the provisions of this Agreement or
the applicable Project Addendum If the Parties do not agree on a particular Site
Schedule, the disagreement shall be resolved as a dispute under this Agreement.
Notwithstanding anything to the contrary, ATC and Client agree that in the event
that a Site can not be completed in accordance with a particular Site Schedule
due to a failure to obtain or a delay in obtaining zoning approvals from
governmental authorities, the applicable Site Schedule shall be automatically
extended for so long as ATC diligently continues to attempt to obtain such
permit or approval and a reasonable period of time thereafter to complete the
Work required. In the event of such a delay, ATC and USWC agree to discuss, in
good faith, reasonable changes to the Specifications, network design and/or
ATC's fees or rental terms with respect to such any such search area to
determine if a cost-effective or more timely alternative location may be
available. Any such changes agreed upon between the parties in an effort to
locate an alternative site location, if any, shall be evidenced in a writing
signed by both Parties.
(d) Subject to Section 19(i), if ATC fails to complete a Site
in accordance with the completion date set forth in the applicable Site
Schedule, ATC will have a ten (10) day cure period. In the event that the Site
is not then completed within such ten (10) day cure period, USWC shall be
entitled to (i) with respect to ATC Existing Sites and BTS Sites, two (2) weeks
of rent abatement and an additional two (2) weeks of rent abatement for every
consecutive period of seven (7) days after the expiration of the foregoing cure
period during which the Site remains uncompleted (it also being understood that
the monthly license fee with respect to such Site would have otherwise commenced
immediately following the delayed completion of such Site), and (ii) with
respect to Third Party Existing Sites, the penalty set forth in Schedule 2 of
the applicable Project Addendum. Notwithstanding anything to the contrary, the
penalties provided for in this Section 8(d) are not deemed by the parties hereto
to be punitive in nature but constitute liquidated damages and shall be each
party's sole and exclusive remedy with respect to the circumstances described in
this Section 8(d).
9. OWNERSHIP AND USE OF DOCUMENTS AND INFORMATION. Drawings,
specifications, and other project critical confidential or proprietary documents
and electronic data (a) furnished by USWC to ATC, or (b) created by ATC in the
course of performing the Work and specifically related to and exclusively to
USWC's use of a particular Site (collectively, the "Designs and Drawings") are
and shall remain the property of USWC and shall be subject to the provisions of
Section 4(h) herein. USWC hereby grants a license to ATC to use all such Designs
and Drawings in the performance of the Work hereunder during the term of this
Agreement.
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10. TERMINATION.
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(a) If ATC materially fails, defaults or neglects to carry out the Work
in accordance with this Agreement and/or any Project Addendum and fails within
ten (10) days after receipt of written notice from USWC to correct or cure such
default or nonconformity (provided that such ten (10) day period shall be
automatically extended for so long as reasonably necessary if ATC commences the
cure during the foregoing cure period and diligently continues to pursue such
correction or cure) with respect to twenty-five percent (25%) or more of the
Sites subject to the applicable Project Addendum, USWC may, without prejudice to
any other remedy it may have, terminate the affected Project Addendum. In the
event that, during the Term of this Agreement, USWC has exercised the foregoing
termination right with respect to five (5) or more Project Addendums, USWC may,
without prejudice to any other remedy it may have, terminate this Agreement.
(b) If the Work is stopped for a period of thirty (30) days through no
fault of ATC or because USWC has not made payments thereon or failed to provide
items as provided in this Agreement or the Project Addendum, then ATC may,
without prejudice to any other remedy it may have, upon ten (10) additional
days' written notice to USWC terminate any Project Addendum and, together with
any other remedies available to ATC at law, recover payment from USWC for all
completed Milestones (as such term is defined in the applicable Project
Addendum) and based on a time and materials rate (but in no event to exceed the
applicable Milestone payment) for Work completed at the time of termination but
associated with an uncompleted Milestone.
(c) Neither a termination nor the expiration of any Project Addendum, Site
or this Agreement will affect:
(i) any duties or obligations for payment or
performance that are or become owing hereunder prior to the
effective date of such termination or expiration;
(ii) any other duties or obligations that expressly
survive the termination or expiration hereof; or
(iii) the term of any Site License entered into by the
parties, which will continue in accordance with its terms
and conditions (provided that any Site License may be
terminated in accordance with its terms), except for Site
Licenses directly associated to the specific event of
default hereunder.
11. WARRANTY. ATC warrants to USWC that all materials, equipment, and
workmanship to be provided by ATC will be new, unless otherwise specified in the
Project Addendum, of good quality, and in conformance with this Agreement. Work
performed and materials and equipment supplied by ATC that is not conforming to
these requirements shall be promptly corrected or replaced by ATC. If a warranty
is provided directly or indirectly by a manufacturer of an item of material or
equipment utilized in the Work, the manufacturer's warranty as to that item is
in addition to the warranty of ATC. With respect to any materials provided by
ATC and to be subsequently owned by USWC, ATC hereby agrees to assign all
applicable third party warranties to USWC to the fullest extent possible.
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12. ARBITRATION.
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(a) Except as otherwise provided in Section 6(b)(i), in the event that
any dispute shall arise in connection with the Work as to the meaning of this
Agreement, or to any statement of facts which may arise, same shall be settled
by the mutual agreement of both parties; or if they are unable to agree, upon
written request of either party, the dispute shall be subject to binding
arbitration according to the rules of the American Arbitration Association. The
arbitration shall be held in New York, New York. The award rendered by the
arbitrator shall be final, and judgment may be entered upon it in accordance
with applicable law in any court having jurisdiction thereto. The fee, if any,
of the arbitrator, shall be shared equally by both parties. Refusal of one party
to arbitrate shall entitle the remaining party to specifically enforce this
Agreement in a court of law or equity, and to receive costs of suit, including,
reasonable attorney's fees. Nothing herein shall preclude, however, the
availability of injunctive or other equitable relief in an appropriate case, and
each party agrees that the other shall be entitled as a matter of right to seek
and obtain an injunction from any court of competent jurisdiction, restraining
any further violation or threatened violation of any restriction or agreement
contained herein for which monetary damages are not an adequate remedy,
including, without limitation, any breach by USWC of its obligations to ATC
pursuant to Section 1.
(b) Any dispute between the parties in connection with a Disagreement
Notice under Section 6(b)(i) of this Agreement will be resolved by an expert in
telecommunications or tower construction, as applicable, based solely on the
specifications and the actual Work performed at the corresponding BTS Site. The
expert shall be appointed by the parties within a term of fifteen (15) business
days of the date of delivery of a Disagreement Notice, or in the event the
parties may not reach an agreement, by the American Arbitration Association,
upon the request of either party, which appointment will be binding to the
parties. The expert will examine the BTS Site and will determine whether (i) the
Work performed by ATC complies with the Project Addendum and this Agreement, in
which event the completion date shall be the date set forth in the BTS
Completion Certificate as issued by ATC, or (ii) if additional Work is required
to comply with the Project Addendum or this Agreement, in which event ATC will
perform all necessary Work for the BTS Site to be completed as soon as
practicable and the BTS Completion Date shall be the date in which such Work (as
determined by the expert) is completed.
13. INDEMNITY. Each of the parties hereto (each an "Indemnifying
Party") shall hold harmless, defend and indemnify the other party hereto, its
affiliates, shareholders, directors, officers, advisors, representatives,
employees, agents, successors and assigns (collectively, the "Indemnitees" and
singly, an "Indemnitee") from and against all suits or actions, claims, demands,
damages, settlements, penalties, fines, and costs and expenses of every kind and
description, including reasonable attorneys' fees and expenses of litigation or
arbitration (collectively, "Claims" and singly, a "Claim") to which any or all
of the Indemnitees may be subjected or put by reason of or arising out of or
related to bodily injury, sickness, disease, or death or injury to or
destruction of tangible property, including loss of use, resulting from
negligence or carelessness or improper methods of operation on the part of the
Indemnifying Party or any of its employees, servants, agents, representative or
subcontractors in the performance of its respective rights and obligations under
this Agreement, or by or on account of any breach of any provision of this
Agreement or any Project Addendum. Notwithstanding the foregoing, as a condition
to indemnity and/or defense obligation hereunder, the Indemnitee(s) to be
indemnified and/or defended shall (i) give written notice to the Indemnifying
Party within thirty (30) days (or such shorter time as shall be necessary to
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avoid prejudice to the rights of the Indemnifying Party, such as to avoid
default due to failure to timely respond to a petition or complaint filed in a
lawsuit) of its actual knowledge of the claim and (ii) upon the Indemnifying
Party's request, execute documents to assign the defense of such claim to the
Indemnifying Party. The Indemnifying Party shall then be entitled to control the
defense of such claim provided that counsel handling such claim is approved by
the Indemnitee(s) being indemnified and/or defended, which approval will not be
unreasonably withheld, and provided, further, that the Indemnifying Party shall
not compromise or settle any Claim without the prior consent of the
Indemnitee(s) unless such compromise or settlement involves only the payment of
money by the Indemnifying Party and the claimant provides to all the Indemnitees
a full release from all liability in respect of such Claim. All reasonable costs
and expenses (including reasonable legal fees) incurred by an Indemnitee which
are properly indemnifiable hereunder shall be paid by the Indemnifying Party
within thirty days after written demand (accompanied by a reasonably detailed
statement of fees and expenses incurred to date) by the Indemnitee.
Notwithstanding anything to the contrary in this Agreement, the MLA or any
Project Addendum, neither party shall be liable to the other for, and waives any
right to recover, consequential (including lost profits), punitive, exemplary
and similar damages.
14. INSURANCE; RISK OF LOSS.
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(a) Both parties hereto shall obtain and maintain, at its own cost and
expense, and shall cause all of its respective subcontractors who perform any or
all of the work to obtain and maintain, the following insurance in full force
and effect during the term of this Agreement:
(i) Commercial general liability insurance providing
coverage for operations and for contractual liability with
respect to liability assumed by such party hereunder. The
limits of coverage for such insurance shall not be less than
$1,000,000/$2,000,000 for bodily injury and $1,000,000 for
property damage.
(ii) Comprehensive automobile liability insurance
covering the use and maintenance of owned, non-owned, hired
and rented vehicles with limits of coverage of not less than
a combined single limit of $500,000 or not less than
$250,000 per person and $500,000 per occurrence for bodily
injury and not less than $300,000 per occurrence for
property damage.
(iii) Worker's Compensation insurance with statutory
limits of coverage.
(iv) Excess liability insurance in the umbrella form
with a combined single limit of $5,000,000.
(v) Employer liability policy with limits of
$1,000,000.00 and not less than $500,000 per occurrence.
<PAGE>
Each party shall name the other party hereto as additional insured on
all of the above stated policies of insurance purchased by such party and shall
arrange for its insurer to submit certificates evidencing such insurance to the
other party upon request by such party. Each insurance policy shall state by
endorsement that such policy will not be canceled or materially changed without
at least thirty (30) days' prior written notice to the other party by registered
mail.
15. PUBLICITY and CONFIDENTIALITY. Neither party hereto shall issue any
press releases relating to the Work performed hereunder, unless the prior
written consent is granted by the other party hereto or as is required by
applicable law (of any applicable country), including the rules and regulations
of the Securities and Exchange Commission, and the stock exchange rules or
regulations. Each party agrees, for itself and its directors, officers,
employees, consultants, representatives, contractors and agents (a) to maintain
in confidence, the terms and provisions of this Agreement, as well as all data
summaries, reports, or information of all kinds, whether oral or written,
acquired or devised or developed during the negotiation and administration of
this Agreement, except on a need-to-know basis in connection with the
performance of this Agreement, and (b) otherwise to reveal the same to other
persons or entities only (i) at the written direction of the other party; (ii)
in compliance with law or the rules of any stock exchange, in which event the
disclosing party shall so notify the other party as promptly as practicable
(and, if possible, prior to making any disclosure) and shall seek confidential
treatment of such information; (iii) as part of its normal reporting or review
procedure to its parent company, its auditors and its attorneys; provided,
however, that such persons or entities agree to be bound by the provisions of
this Paragraph; (iv) where such information is part of the public domain or
previously disclosed by the other party; (v) to potential investors, insurers or
financing entities and the agents, representative and consultants of the same;
provided, however, that such person agrees to be bound by the provisions of this
Paragraph; (vi) in accordance with any offering of securities or other financial
transaction and, in connection therewith, the disclosing party shall first
notify the other party of the contents of the proposed disclosure of its
approval, which shall not be unreasonable withheld. Notwithstanding the
foregoing, nothing in this Section 15 shall be deemed to (i) limit or restrict
ATC's right to market any Sites owned or operated by ATC (including, without
limitation, build-to-suit sites) to third parties following the selection of an
such a Site by USWC under any Project Addendum procedure (including the
disclosure or reasonably necessary information regarding the USWC's equipment or
proposed installation or the frequencies which USWC intends to operate from the
Site), or (ii) limit or restrict USWC's or ATC's right to identify USWC's
equipment or ATC's facility (or proposed facility) at any Site in governmental
filings or marketing materials.
16. BANKRUPTCY. Either party may terminate this Agreement by notice in
writing in the event that the other makes a general assignment for the benefit
of creditors; is declared insolvent in any state insolvency proceeding; becomes
the subject of an order for relief under Chapter 7 of the United States
Bankruptcy Code, 11 U.S.C. ss.101 et. seq., or successor statute (the
"Bankruptcy Code"); becomes a voluntary debtor in a case under Chapter 11 of the
Bankruptcy Code; becomes an involuntary debtor in a case under either Chapter 7
or 11 of the Bankruptcy Code and fails to achieve a dismissal of the case within
sixty (60) days; or consents to or is subjected to the appointment of a trustee,
receiver, or liquidator with respect to all or substantially all of the Person's
properties.
<PAGE>
17. AUDIT. ATC shall maintain complete records of all costs
reimbursable by USWC under the terms of this Agreement. All such records shall
be maintained in accordance with generally accepted accounting principles. USWC
shall have the right upon reasonable prior notice, through its accredited
representatives and at its sole cost, to examine and audit such records during
business hours at one or more ATC offices. In the event the correctness of ATC's
billing is disputed, USWC may retain an independent auditor and if any such
audit concludes that on any month ATC's calculation of amounts due differs by
more than ten percent (10%) from the actual amount thereof, ATC shall reimburse
USWC for all reasonable fees, costs and expenses paid for the audit.
18. INDEPENDENT CONTRACTOR: NO GENERAL CONTRACTOR DESIGNATION. Neither
ATC nor its subcontractors, nor the employees or agents of any of them, shall be
deemed to be USWC employees or agents, it being understood that ATC and its
subcontractors are independent for all purposes and at all times, and ATC shall
be wholly responsible for withholding and payment of all federal, state, and
local income and other payroll taxes with respect to its employees, including
contributions from them and as required by law. ATC and USWC hereby acknowledge
and agree that ATC's performance of the Work herein shall not be deemed to be
services of a general contractor, as that term is commonly used in the
construction industry. ATC's performance of the Work hereunder shall be deemed
performed by ATC on behalf of USWC, as USWC's representative, for all Sites
other than Sites to be constructed by ATC for ATC's ownership and operation, in
which event ATC's performance of the Work shall be deemed performed for ATC's
sole benefit.
19. MISCELLANEOUS.
-------------
(a) ENTIRE AGREEMENT. Other than that certain MLA dated as of this date,
this Agreement and the exhibits attached hereto contains the entire agreement of
the parties with respect to the subject matter herein and shall not be amended
or modified without specific written provision to that effect signed by both
parties. No oral statement of any person whomsoever shall modify the terms of
this Agreement.
(b) SEVERABILITY. The invalidity or unenforceability of any particular
provision of this Agreement shall not affect the other provisions hereof, and
the Agreement shall be construed in all respects as if such invalid or
unenforceable provisions were omitted.
(c) CHOICE OF LAW. It is understood and agreed that this Agreement and all
of the rights and obligations of the parties hereunder shall be governed by the
laws of the State of New York, except for any conflict of law provisions
therein.
(d) WAIVER. No provision of this Agreement shall be deemed waived, amended,
or modified by either party, unless such waiver, amendment or modification be in
writing and signed by the party against whom it is sought to enforce the waiver,
amendment or modification. Delay in the enforcement by either party of any term
or condition hereof or in the exercise of any right hereunder shall not be
construed as a waiver.
<PAGE>
(e) ACCORD & SATISFACTION. No endorsement or statement on any check or
letter accompanying a check for payment of fee or other amount shall be deemed
an accord and satisfaction, and ATC may accept such check or payment without
prejudice to ATC's right to recover the balance of such fee or other payment or
to pursue any other remedy provided in this Agreement. No payment by USWC or
receipt by ATC of a lesser amount than the amount invoiced by ATC shall be
deemed to apply to any amount other than the earliest then outstanding payment
due hereunder.
(f) NOTICE. Any notice to be given under this Agreement by any party to the
other shall be deemed to have been duly given if given in writing and personally
delivered, sent by nationally recognized overnight courier, or sent by mail,
registered or certified, postage prepaid with return receipt requested, at the
address specified below:
<TABLE>
<CAPTION>
<S> <C>
Notices to USWC shall be addressed to: U.S. Wireless Corporation
2303 Camino Ramon
San Ramon, CA 94583
Attn: General Counsel
Notices to ATC shall be addressed to: AMERICAN TOWER, L.P.
116 Huntington Avenue
Boston, MA 02116
Attn: General Counsel
With a copy to: The local ATC address set forth in
the applicable Project Addendum
</TABLE>
Notices delivered personally or by courier, shall be deemed communicated as of
actual receipt; mailed notices shall be deemed communicated as of 10:00 a.m. on
the third business day after mailing. Any party may change its address for
notice hereunder by giving notice of such change in the manner provided in this
paragraph. Refusal to accept delivery of any notice shall be deemed receipt of
such notice.
(g) ASSIGNMENT. Any assignment of this Agreement, in whole or in
part, or any other interest hereunder without the prior written consent of the
other party hereto shall be void and deemed a material breach of this Agreement;
provided, however, that (i) no such consent shall be required in the event of an
assignment by ATC to a company which is controlled by, controls or under common
control with ATC ("Affiliate") so long as ATC remains liable hereunder after
such assignment, and (ii) no consent shall not be unreasonably withheld,
conditioned or delayed with respect to the assignment of this Agreement by ATC,
in whole or in part, to a successor by way of merger or acquisition of
substantially all of the assets or stock of ATC, though USWC shall have the
right to receive business and financial information with respect to the assignee
in accordance with its review. The parties hereto acknowledge and agree that the
BTS Sites shall be owned and/or leased by American Tower Management, Inc.
("ATMI"), an Affiliate of ATC, and the license of a portion of ATC Existing
Sites and BTS Sites to USWC hereunder shall be between the applicable ATC
Affiliate. ATC agrees to cause each of its Affiliates to enter into the
applicable Site License with respect to such Sites in accordance with the terms
and conditions of this Agreement and the MLA. USWC agrees that the foregoing
shall not be deemed an "assignment" for the purposes of this Section 19(g). USWC
<PAGE>
agrees that notwithstanding any other provision in this Agreement, any
agreement, instrument, certificate or document entered into pursuant to or in
connection with this Agreement or the Work hereunder and any rule of law or
equity to the contrary, to the fullest extent permitted by law, ATC's
obligations and liabilities under any this Agreement and all other agreements
related hereto (excluding obligations and liabilities arising solely under the
MLA and any individual Site License between USWC and ATMI) shall be Nonrecourse
to ATMI. For the purposes of this paragraph. "Nonrecourse" means that the
obligations and liabilities are limited in recourse to ATC and its applicable
Affiliates other than ATMI and not guaranteed directly or indirectly by, or the
primary obligations of, ATMI. Except with respect to claims directly and
exclusively arising from the terms of any individual Site License (and the
applicable terms of the MLA), USWC hereby covenants for itself, its successors
and permitted assigns that it, its successors and permitted assigns will not
make, bring, claim, commence, prosecute, maintain, cause or permit any action to
be brought, commenced, prosecuted, maintained, either at law or in equity, in
any court in the United States or any state thereof or in any arbitration forum
against ATMI for (i) the payment of any amount or the performance of any
obligation under this Agreement or (ii) the satisfaction of any liability
arising in connection with any such payment or obligation or otherwise,
including, without limitation, liability arising in law for tort (including,
without limitation, for active and passive negligence, negligent
misrepresentation and fraud), equity (including, without limitation, for
indemnification and contribution) and contract (including, without limitation,
monetary damages for the breach of any representation or warranty or performance
of any of the covenants or obligations contained in this Agreement or with the
Work contemplated herein or therein
(h) SUCCESSORS AND ASSIGNS. This Agreement shall inure to
the benefit of, and shall be binding upon, the parties hereto and their
respective successors and permitted assigns.
(i) FORCE MAJUERE. An event of "Force Majeure" shall mean the following
events or circumstances, to the extent that they delay the performance by ATC of
any of its duties and obligations under this Agreement, Project Addendum or Site
Schedule:
(i) Any acts, omissions, orders, actions, inactions,
decisions, or decrees of any Governmental Authority which
adversely affects ATC's ability to perform its obligations;
(ii) Changes in any federal, state or local laws,
ordinances, and regulations effective after the date of this
Agreement which adversely affect ATC's ability to perform
its obligations;
(iii) Acts of God, including, without limitation, rain,
snow, extreme temperatures, tornadoes, hurricanes, floods,
sinkholes, landslides, earthquakes, epidemics, quarantine
and pestilence;
(iv) Fire and other casualties, such as explosions and
accidents;
(v) Acts of war, terrorism, effects of nuclear
radiation, blockades, insurrections, riots, civil
disturbances, the combined action of workers, failure of
transportation, national or international calamities, and
other acts and circumstances beyond a party's reasonable
control; and
<PAGE>
(vi) any delay caused by the acts or omissions of USWC
or its employees, agents, contractors, customers or vendors
which adversely affects ATC's ability to perform its
obligations.
In the event of an event of force majeure, the time for performance of any of
ATC's obligations under this Agreement or any affected Site Schedule or Project
Addendum shall only be adjusted to the extent reasonable under the circumstances
for the additional time which will be reasonably required for the performance of
any of the duties or obligations of ATC under this Agreement, the affected Site
Schedule or Project Addendum as a result of such event. Notwithstanding the
above, if the event is then-continuing and is directly specific to ATC and the
Work can be performed by USWC or a third party without such impediment (except
with respect to an event of force majuere pursuant to Section 19(i)(vi)
hereunder), USWC shall have the right to terminate the affected Site upon no
less than 5 days notice to ATC (so long as such event of force majuere is not
ended within such five day period) and have the Work performed by USWC or a
third; provided, however, that USWC shall pay ATC for the applicable Milestones
completed as set forth in the applicable Project Addendum.
(j) THIRD PARTY BENEFICIARIES. The parties hereto do not intend
that any other person or entity be considered to be a third party beneficiary to
this Agreement.
(k) NO WAIVER OF CONTRACTOR'S RIGHTS UNDER OTHER AGREEMENTS.
Notwithstanding anything to the contrary, ATC and USWC hereby acknowledge and
agree that nothing contained in this Agreement, its exhibits, any Project
Addendums or any modifications or amendments thereto shall in any manner (or
shall be deemed or interpreted to) restrict, limit, waive, modify or amend any
of the covenants, warranties, representations, rights, obligations or agreements
contained in the MLA, subscription agreement or any other agreement between the
parties hereto.
(l) LANGUAGE. The headings or articles and paragraphs are
for convenience only and shall not modify the rights and obligations of the
parties.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Execution Date.
<TABLE>
<CAPTION>
<S> <C>
AMERICAN TOWER, L.P. US WIRELESS CORPORATION
By: ATC GP, Inc., as its sole General Partner
By:_______________________________ By:_______________________________
Name:____________________________ Name:____________________________
(Please Print) (Please Print)
Title______________________________ Title______________________________
</TABLE>
