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Wireless Facilities - MICROWAVE RELOCATION SERVICES AGREEMENT
Exhibit 10.26
MICROWAVE RELOCATION SERVICES AGREEMENT
THIS MICROWAVE RELOCATION SERVICES AGREEMENT (the "Agreement") is entered into as of February 11, 1998 (the "Effective Date") by and between Triton PCS Operating Company, L.L.C., a Delaware limited liability company ("Triton") and Entel Technologies, Inc., a Delaware corporation ("Entel") (Triton and Entel are each hereinafter referred to individually as a "Party" or collectively as "Parties").
1. Description of Services. In accordance with and subject to the terms and
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conditions of this Agreement, Entel hereby agrees to provide Triton with
the microwave clearing services (the "Services") described in Exhibit I
hereto (the "Scope of Services") as assigned pursuant to a fully executed
work order (`W.O.) similar in form to the W.O. set forth in Exhibit III
2. Term of Agreement. The term of this Agreement shall be fifteen (15)
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months from the Effective Date unless otherwise terminated in accordance
with this Agreement. The term of this Agreement will automatically renew
for an additional term of one (1) year unless either Party communicates, in
writing, thirty (30) days prior to expiration of the initial term, to the
other Party, its intent not to renew the Agreement.
3. Non Exclusivity. Each Party shall be free to enter into any other contracts
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or agreements, similar or dissimilar, with any other person or entity.
4. Assignment of Work. Triton shall assign work to Entel by issuing a W.O.
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similar to the form set forth in Exhibit III hereto. Each W.O. shall
describe the Services to be performed. W.O. number 1 and number 2 have been
fully executed by the Parties and copies are attached hereto as Attachment
II and III.
5. Acceptance of Work. Entel shall manifest its acceptance of assigned work by
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executing the W.O. within [***] of receipt of the W.O. from Triton.
6. Compensation. The pricing for the Services, as previously agreed to by both
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Parties, is set forth in Exhibit II hereto.
7. Invoices and Payments. Entel shall invoice Triton according to the
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timeframes set forth in Exhibit II. Invoices shall be due and payable by
Triton within thirty (30) days of the date of receipt by Triton. Triton
shall review the invoices and notify Entel in writing within thirty (30)
days of receipt of the invoice of any objection or question Triton may have
in connection with the invoice. If any items are disputed, only the
disputed items may be withheld from payment. The remaining undisputed
portion of the invoice shall be paid in accordance with the terms of this
8. Taxes. All taxes and similar assessments, levies and government imposed
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obligations with respect to income derived from Entel's performance of
Services hereunder shall be the obligation of and be paid by Entel. Triton
shall pay any other applicable taxes.
9. Breach and Termination.
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A. Breach. For purposes of this Agreement, Breach shall mean the
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following:
1. Breach by Triton. Triton's failure to timely pay service fees or
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reimbursable expenses in accordance with the procedures set forth
in this Agreement.
2. Breach by Entel. Entel's failure to provide timely or quality
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Services as required by the terms of this Agreement. The quality
of Entel's services shall be evaluated in good faith based on the
industry standard of quality for consulting services of the same
or similar nature.
* Confidential treatment requested.
B. Termination for Breach, Cure Period. The non-breaching Party shall
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provide the breaching Party fifteen (15) days, after receipt of a
written termination notice setting forth the nature of the Breach, to
cure such breach provided however that Triton, subsequent to providing
[***] cure notices to Entel within a [***] period, which period shall
commence on the Effective Date hereof, shall be entitled to terminate
the Agreement without providing notice to Entel. When written notice
of a breach is required hereunder, the applicable remedy for such
breach shall be unavailable until the passage of such cure period.
C. Termination in Event of Default. Either Party may terminate this
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Agreement upon written notice to the other Party under any of the
following circumstances, each of which shall constitute an Event of
Default: (i) the other Party makes an assignment for the benefit of
creditors (other than solely as an assignment of moneys due); (ii) the
other Party becomes unable to pay its debts as they become due, unless
assurance satisfactory to the terminating Party is provided within
thirty (30) days of receipt of its notice of termination hereunder; or
(iii) the other Party becomes the subject of a proceeding, whether
voluntary or involuntary, under the bankruptcy or insolvency laws of
the United States or any other jurisdiction, unless such proceeding is
dismissed or withdrawn within forty-five (45) days of the non-
defaulting Party's receipt of the defaulting Party's notice of
termination hereunder.
D. Procedure Upon Expiration or Termination. Upon the expiration or
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termination of this Agreement, Entel shall promptly return to Triton,
or destroy, as Triton may direct, all of Triton's property in Entel's
possession. Entel shall be entitled to payment for Services rendered
and for reimbursable expenses related thereto incurred prior to the
effective date of termination, as Entel shall set forth in its final
invoice to Triton. Triton shall pay Entel the pro rata portion of the
service fee that is represented by the portion of Services rendered
prior to the effective date of the termination. Each Party shall
provide to the other such reasonable assistance as may be necessary
for the orderly continuation of the other Party's business.
10. 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
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, non-performance by negligence, or
wrongful act of Entel arising directly out of the performance of this
11. Insurance. Entel shall maintain: Commercial General Liability coverage in
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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 insurance required by law, 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.
* CONFIDENTIAL TREATMENT REQUESTED.
12. Confidentially. 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
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.
13. Independent Contractor. Entel is and shall act as an independent contractor
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in the performance of its obligations under this Agreement. Entel shall
exercise full control of and supervision over its employees. Entel's
personnel performing Services are agents, employees or subcontractors of
Entel and are not employees or agents of Triton. Entel will be solely
liable for all matters relating to compensation, unemployment, disability
insurance, social security, withholding and all other federal, state and
local laws, rules and regulations governing such matters.
14. Prohibition of Solicitation. During the term of this Agreement, neither
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party shall solicit nor accept for employment any employees of the
other party without the express written consent of the other party.
15. Force Majeure. Neither Party shall be liable for any delay or failure in
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performing its obligations hereunder that is due to circumstances beyond
such Party's reasonable control, including, but not limited to, acts of
God, civil unrest, riots, war, fire, floods, explosions and strikes or
other concerted acts of labor, provided that such circumstances were not
reasonably foreseeable by such Party and, by the exercise of commercial due
diligence, could not have been prevented or overcome by such Party. Upon
the occurrence of a force majeure condition, the Party whose performance is
affected shall give written notice to the other Party describing the
affected performance. The parties shall promptly confer, in good faith, to
agree upon equitable, reasonable action to minimize the impact of the
condition on both parties. The parties agree that the Party whose
performance is affected shall use commercially reasonable efforts to
minimize the delay caused by the force majeure condition and recommence the
affected performance. In the event that the delay caused by the force
majeure event lasts for a period of more than thirty (30) days, the parties
shall negotiate an equitable modification to this Agreement with respect to
the affected performance. If the parties are unable to agree upon an
equitable modification within fifteen (15) days after such thirty (30) day
period has expired, then either Party shall be entitled to serve thirty
(30) days notice of termination on the other Party with respect to only the
affected performance. If the force majeure event for such affected
performance continues upon the expiration of such thirty (30) day notice
period the portion of this Agreement relating to the affected performance
shall automatically terminate. The remaining portion of this Agreement that
does not involve the affected performance shall continue in full force and
16. Limitation of Liability. Entel's liability with respect to services
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provided hereunder shall not exceed the amount paid to Entel under this
17. Waivers and Amendments. Waiver by either Party of any default hereunder by
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the other Party shall not be deemed a waiver of any other default. 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 authorized representative of the Party against whom such
waiver, amendment or modification is to be enforced.
18. Governing Law; Consent to Jurisdiction and Venue. This Agreement shall be
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construed in accordance with the laws of the Commonwealth of Pennsylvania,
excluding the conflict of laws provisions thereof.
19. Assignment 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
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assign this Agreement to any affiliate of Entel upon written notice to
Triton. An affiliate is defined herein as a corporation or other business
organization that owns, controls, is controlled by, or is under common
control with, a party. Any purported assignment in violation of this
Section shall be void.
20. Severability. If any provision or any part of a provision of this Agreement
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shall be held invalid or unenforceable, then the remaining portions of that
provision and the remainder of the Agreement shall be construed as if not
containing the particular invalid or unenforceable provision or portion
thereof, and the rights and obligations of each Party shall be construed
and enforced accordingly.
21. Survival. The terms, conditions and warranties contained in this Agreement
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that by their sense and context are intended to survive the termination or
expiration of this Agreement shall so survive.
22. Entire Agreement; Modifications. This Agreement, including the Exhibits
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attached hereto, constitutes the entire agreement between the parties with
respect to the subject matter hereof as of the Effective Date with respect
to the Services. All prior agreements, representations, statements,
negotiations, understandings and undertakings are superseded by this
Agreement. This Agreement may be modified only in a written document signed
by both parties.
23. Headings; Construction. The headings of the Paragraphs of this Agreement
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are inserted for convenience only and are not intended to affect its
meaning or interpretation. Throughout this Agreement, the singular shall
apply to the plural and the plural to the singular, unless the context
clearly indicates otherwise.
24. Notices. Except as otherwise provided herein, all notices or other
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communications to be given or that may be given by either Party to the
other shall be deemed to have been duly given when made in writing and
delivered in person or when deposited in the United States mail, postage
prepaid, certified, return receipt requested or sent via facsimile with
confirmation of receipt, and addressed as follows:
If to Entel:
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Mr. Dee Alipanah, Vice President
Entel Technologies, Inc.
1110 N. Glebe Road, Suite 850
Arlington, VA 22201
Fax: (703) 812-8700
If to Triton:
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Mr. Abbas Borghei
Triton PCS Operating Company, L.L.C.
101 Lindenwood Drive, Suite 125
Malvern, Pennsylvania 19355
Fax: (610) 993-2683
The notice addresses may be changed by written notice given by one Party to the other.
25. Exhibits. The following Exhibits and Attachment are attached hereto and
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incorporated herein:
Exhibit I: Scope of Services for Spectrum Sharing and Microwave
Relocation Services
Exhibit II: Pricing and Pass Through Expenses for Spectrum Sharing
Engineering and Microwave Relocation Services
Exhibit III: Sample Work Order
Attachment I List of Valid Paths Identified in Fast Start Report
Attachment II Work Order Number 1
Attachment III Work Order Number 2
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the Effective Date.
TRITON PCS OPERATING ENTEL TECHNOLOGIES, INC. COMPANY, L.L.C. By: TRITON MANAGEMENT COMPANY, INC., ITS MANAGER
/s/ Clyde Smith /s/ John T. Vento - ------------------------- ---------------------------
Clyde Smith John T. Vento - ------------------------- --------------------------- Print Name Print Name
Executive Vice President President - ------------------------- --------------------------- Title Title
Exhibit I
Microwave Relocation Services Agreement
Between Triton and Entel
Scope of Services
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Spectrum Sharing and Microwave Relocation Services
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Entel, utilizing the Comsearch IQ Clear spectrum sharing tool, procured and provided by Entel, will supply to Triton all labor, services, resources, and consultation necessary to perform the spectrum sharing study and analysis, drive test frequency selection, and prior coordination notices described below ("Spectrum Sharing Services"). Entel will also provide Triton with the Microwave Relocation Services described below.
1. Spectrum Sharing Study and Analysis
Entel will perform spectrum-sharing studies, as required by Triton, for the
selected frequency, in each assigned BTA. The studies will initially be
based on the generic traffic cell based design, which will be modified
subsequently to include RF design information provided by Triton. Entel
will identify all paths that could be affected by Triton's proposed PCS
systems, based on FCC guidelines on interference avoidance. Entel will
perform multiple interference studies for each assigned frequency and BTA,
as required, over the course of the design and buildout phases.
2. Drive Test Frequency Selection
On a continuous basis as frequencies are assigned, Entel will complete the
spectrum sharing study and analysis and provide Triton with the required
drive test frequencies for the assigned BTS locations (if a non-interfering
frequency is available).
3. Prior Coordination Notices
Entel will prepare Prior Coordination Notices (PCN(s)), mail PCNs to
incumbents and clearinghouses, and coordinate responses and objections to
PCNs, as required. Typically one PCN mailing will be required for each BTA,
unless considerable RF engineering design changes occur later in the pre-
launch phase. As a result of RF design changes, additional PCN(s) will be
performed as required.
4. Microwave Relocation Services
Phased Delivery of Services
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Entel shall provide Triton with microwave relocation services (the
"Services") as described below. The Services shall be delivered to Triton
in three phases:
Phase I: Market Relocation Analysis
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Phase II: Negotiations and Final Contract Execution
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Phase III: Relocation Program Management
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Phase I - Market Relocation Analysis
Entel will utilize the results of the spectrum sharing study and analysis
and will perform the following steps as required to complete assessment of
interfering paths/incumbents as identified in the spectrum sharing study
and analysis.
A. Service Description
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1. Review and Catalog Path Data. Review information from the
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spectrum sharing study and analysis on a per market and per
incumbent basis for both co-channel and adjacent channel paths.
Information such as number of links, equipment and modulation
type, capacity, site names and locations for each path will be
logged for use during negotiations and relocation
program management.
3. Path Prioritization. Entel will develop technical parameters for
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the interfering co and adjacent channel paths to establish
negotiation and relocation strategies and path priorities.
4. Review of Incumbent Data. Entel will review incumbent system data
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on a per link basis and compare the information against FCC
database information to determine whether the incumbent is
operating on a primary status with a current license.
5. Path Status Verification and Initial Incumbent Assessment. Entel
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will contact each incumbent to confirm database information,
verify path status, i.e. active, negotiated, or decommissioned.
If the incumbent has not entered into an agreement with another
PCS licensee, then Entel will assess the incumbent's willingness
to negotiate, identify strategic information, and discuss
preliminary relocation options.
6. Assessment of Previously Negotiated Paths. Entel will attempt to
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obtain the terms and status of each relocation agreement entered
into between an incumbent and other PCS licensee(s). Entel will
attempt to obtain a copy of the agreement, provided that it is
not protected by a non-disclosure agreement. Entel will determine
whether the dates agreed upon in the relocation agreement meet
Triton's requirements.
7. Estimate Comparable Relocation Costs. Estimate relocation costs
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on a per incumbent and per market basis for paths that are
determined to be active or co-channel paths that have been
negotiated and/or relocated. Information such as system type and
architecture, number of links required to be relocated, tower
heights and typical system usage will be used to develop the cost
8. Route Mapping. Develop route maps on a per incumbent and per
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market basis delineating co-channel and adjacent channel active
B. Deliverables
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Entel will provide to Triton a written report containing the following
information:
1. Preliminary Analysis of Assigned BTAs:
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a) Copies of FCC licenses for each identified path;
b) Comparable cost documentation for each active path or for
each co-channel paths which have been negotiated and/or
relocated;
c) Detailed budgetary cost analysis on a per BTA and frequency
basis;
d) Route maps; and
e) Frequency relocation contract templates.
-II-
Phase II - Incumbent Negotiations and Final Contract Execution
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A. Service Description
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1. Introductory Mailing. Entel will identify the proper technical
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and negotiation contact for each incumbent and send an
introductory mailing packet containing general information on
microwave relocation and specific information about Triton and
its proposed course of action.
2. Negotiation Parameters. Entel will work with Triton to develop
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negotiation parameters. These parameters should be established
prior to the commencement of negotiations so that settlements may
be negotiated expeditiously.
3. Development of Negotiation Strategies. Entel will work with
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Triton to develop optimal negotiation strategies for each
incumbent and market. These strategies will be based upon the
size and location of each incumbent's network, considering
whether the incumbent is present in multiple Triton markets,
Triton's priorities and its willingness to provide various
relocation alternatives.
4. Initiate Negotiations. Entel will negotiate with incumbent to
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reach an agreement that conforms to Triton's relocation schedule
and cost parameters.
5. Additional Negotiation and Finalization of Agreement for Amended
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Relocation Dates. If a path has been negotiated by another PCS
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licensee, but the relocation date(s) are unacceptable to Triton,
then Entel will initiate negotiations with the incumbent, other
PCS licensee(s) or both to alter the unacceptable relocation
dates and bring them into conformity with Triton's relocation
6. Negotiation Strategy. Entel will re-assess negotiation parameters
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and strategies as required based on discussions with incumbents,
additional information obtained from incumbent meeting, and any
modifications to Triton's deployment schedule.
7. Contract Templates. Triton's inside counsel shall review and
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modify, as required, the contract templates that Entel provided
to Triton. These pre-approved contract templates are essential
for enabling Entel to conclude negotiations in an efficient and
expedient manner.
8. Finalize Relocation Terms. Entel will provide the proposed
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business terms to Triton for approval.
9. Finalize Relocation Agreement. Once Triton has approved the
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business terms, Entel shall work with Triton's counsel to
facilitate the negotiation and execution of the final relocation
agreement between Triton and the incumbent.
B. Deliverables
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Entel will provide Triton with the following deliverables:
1. Signed offer letter;
2. Executed frequency relocation agreement between incumbent and
Triton;
3. Copies of any correspondence that Triton may request; and
-III-
4. Periodic reports detailing the status of each negotiation and
summarizing the information obtained on each incumbent.
-IV-
Phase III - Relocation Program Management
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A. Service Description
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1. Frequency Coordination. Entel will order frequency coordination.
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If required, Entel will prepare the required FCC license
applications for incumbent's signature and submit such
applications to the FCC.
2. Detailed Relocation System Design. Entel will order engineering
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services required to design and engineer the microwave path
including path and site surveys and network system design.
3. Third Party Proposals. Entel will obtain and review third party
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proposals for equipment and/or services, including but not
limited to construction, installation, testing and training and
other services required to implement the turnkey replacement and
make a recommendation to Triton as to which proposal to accept.
4. Tower Stress and Foundation Analysis. Entel will order any
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required tower and foundation analyses. Entel will coordinate and
program manages the entire process.
5. Tower Options Analysis. Entel will review results of the tower
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and/or foundation analysis and based on the recommendation made
by the Supplier, determine most cost-effective option such as
structural strengthening, replacement, or alternate courses of
6. Leased Facilities. In the event that an incumbent transfers its
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operations to leased facilities and requests Triton's assistance
in the transfer, Entel will coordinate the transfer of the
facilities to alternate leased by the scheduled decommissioning
7. Relocation Plan. Entel will develop a relocation plan that sets
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forth detailed relocation requirements including equipment
procurement requirements, time line requirements, system
performance requirements and detailed installation requirements.
These detailed installation requirements will include testing,
acceptance, and commissioning requirements.
8. Installation Feasibility Analysis. Entel, in coordination with a
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third party equipment supplier and installer, will conduct an
installation feasibility analysis in order to identify detailed
installation requirements and to ensure that decommissioning
objectives are met.
9. Installation Oversight. Entel will supervise the installation of
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the replacement system to ensure that the old system is
decommissioned on schedule and that the incumbent is satisfied
with the installation of the replacement system.
10. Tower Modification Oversight. Entel will monitor third party
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Suppliers' performance to ensure timely completion of their
11. Documentation Review. Entel will review "as-built" documentation
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prepared by third party Suppliers, verify completion of third
party supplier contractual requirements, and recommend to Triton
to proceed with final payment based on acceptance criteria.
12. Incumbent Acceptance. Entel will obtain final incumbent
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acceptance of equipment and facility installation. Entel will
ensure incumbent's satisfaction that the contractual obligations
by Triton and its subcontractors (if applicable) have been met.
-V-
13. Final Cost Documentation. Entel will provide Triton with a final
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accounting of the costs incurred to perform the turnkey
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