EXHIBIT 10.11
INDEPENDENT CONTRACTOR AGREEMENT
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WITH CONFIDENTIALITY AND NON-COMPETITION AGREEMENTS
THIS AGREEMENT is entered into as of this 8th day of July 1996 between Crown
Network Systems, Inc. a Pennsylvania corporation (the "Contractor"), with an
office at Xxxx Xxxxxx Xxxx XXX, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxxxxxx 00000, and
Sprint Spectrum L. P., a Delaware limited partnership ("Sprint Spectrum"), with
an office at Xxxx Xxxxxx Xxxx XX, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxxxxxx 00000.
WHEREAS, the Contractor has been approved to perform construction services for
Sprint Spectrum on selected communications sites (each of which is referred to
herein as a "Site") for Sprint Spectrum's Personal Communications System ("PCS')
in the Pittsburgh Metropolitan Trading Area.
In consideration of the mutual covenants and promises set forth herein, the
parties hereto, intending to be legally bound hereby, agree as follows:
1. The Contractor shall perform all the work set forth in the Scope of Work
(the "Work"), pursuant to the specifications and terms and conditions set
forth therein or which may reasonably be implied therefrom. All of the
services set forth in Exhibit "B" attached hereto and all materials,
supplies, services, equipment, technical specifications and other items set
forth in the Notice to Proceed (as defined in Paragraph 3 hereof), are
included in the Work. Technical specifications and a Construction Services
Fee will be negotiated independently for each selected Site and
incorporated into the Notice to Proceed. The Construction Services Fee will
be "Firm Fixed Price" for the services described in the Construction
Services section of Exhibit B and those services set forth in the Notice to
Proceed (the "Construction Services Fee").
2. Following the full execution of a Site Lease Acknowledgment ("SLA"), the
Contractor shall send its invoice to Sprint Spectrum requesting payment of
a Lump Sum Price for such Site. Payment of the Lump Sum Price by Sprint
Spectrum shall be due within thirty (30) days from receipt of the
Contractor's invoice. The Lump Sum Price for each selected Site shall be
comprised of a Construction Management Fee of [*], and a Warehousing and
Material Handling Fee of [*] for the services described in the Construction
Management and Warehousing and Material Handling sections of Exhibit B (the
"Lump Sum Price").
3. The Contractor shall prepare and deliver to Sprint Spectrum, together with
a signed SLA, a "Firm Fixed Price" proposal, a xxxx of materials, a
description of the Work and technical specifications. Upon agreement to the
price and terms of the foregoing, Sprint Spectrum shall issue to the
Contractor a written notice confirming the price and terms agreed upon and
fixing the date on which the Contractor shall commence
[*] Indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
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performance of its obligations under this Agreement (the "Notice to
Proceed"). The Contractor shall commence the Work, pursuant to this
Agreement, on each Site promptly upon the commencement date set forth in
the Notice to Proceed and shall prosecute the Work on each Site diligently
to completion. The Contractor will complete the Work required pursuant to
the Notice to Proceed within thirty (30) calendar days of the commencement
date set forth in the Notice to Proceed; provided, however, that the
Contractor shall not be obligated to complete more than 16 Sites in any
thirty (30) calendar day period. If more than 16 Notices to Proceed are
concurrently outstanding, the Contractor will have an additional three (3)
days to complete each Site above the 16 Site minimum. For example, if 17
Notices to Proceed are outstanding, the last Site will be completed within
thirty-three (33) calendar days of the commencement date set forth in its
Notice to Proceed. If 18 Notices to Proceed are outstanding, the first 16
must be completed within thirty (30) days, the 17th within thirty-three
(33) days of the commencement date set forth in its Notice to Proceed and
the 18th within thirty-six (36) days of the commencement date set forth in
its Notice to Proceed. Once the outstanding Notices to Proceed are below
16, the thirty day completion requirement will resume for any Notices to
Proceed thereafter issued. The Contractor shall not perform any of the Work
or make any financial commitments until receiving the Notice to Proceed.
The performance of any portion of the Work or preparation to perform any of
the Work by the Contractor, prior to receiving the Notice to Proceed, is
done at the Contractor's own risk.
4. Upon final completion of the entire Work at each Site by the Contractor in
accordance with the provisions of this Agreement, the Contractor shall
request, in writing, final inspection of the Work. Sprint Spectrum will
inspect the Work within five (5) calendar days of the Contractor's written
request. Within five (5) calendar days of the inspection, Sprint Spectrum
will either provide a signed writing evidencing final acceptance of the
Work, or, through the use of a punch list form, advise the Contractor of
the portions of the Work that are defective or incomplete or of obligations
that have not been fulfilled but are required for final acceptance. The
Contractor shall complete any unfinished or defective portion of the Work
which is necessary to install and operate Sprint Spectrum's equipment
within five (5) working days following issuance of the punch list. In no
event shall completion by the Contractor of all unfinished or defective
portions of the Work exceed thirty (30) calendar days following issuance of
the punch list. After final acceptance of the Work, Sprint Spectrum shall
pay the Contractor the Construction Services Fee identified in the Work
within forty-five (45) days from the date of receipt of the Contractor's
invoice. Acceptance by the Contractor of payment shall release Sprint
Spectrum from all claims and all liability to the Contractor for all things
done or furnished in connection with the Work and from all acts or
omissions of Sprint
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Spectrum relating to or arising out of the Work. No payment, however, shall
operate to release the Contractor from its obligations under this
Agreement.
5. Sprint Spectrum will, from time to time, provide the Contractor with a list
of materials and equipment which Sprint Spectrum will supply (the "List").
The Contractor will use the materials and equipment supplied by Sprint
Spectrum and will not substitute any of the same without Sprint Spectrum's
prior written consent. Materials and equipment supplied by Sprint Spectrum
shall be inspected, approved and accepted by the Contractor and become part
of the Work of this Agreement. If materials or equipment are required which
are not on the List, the Contractor may supply such materials or equipment
itself or obtain them from independent parties. If the Contractor supplies
any materials, equipment or labor it shall be based on the Contractor's
published rates as set forth on Exhibit "C" attached hereto. The Contractor
shall identify the cost being billed to Sprint Spectrum for any materials,
equipment or labor which it desires to obtain from an independent party and
shall identify the manufacturer of such materials as are obtained from an
independent party in its proposal for the Construction Services Fee. Upon
request, the Contractor shall submit an itemized account and supporting
data which substantiates all costs and expenses associated with materials,
equipment or labor procured from independent parties.
6. Notwithstanding any other provision contained in the Work or any other
document exchanged by the parties, the following terms and conditions shall
apply with respect to this Agreement and the materials, equipment and
services provided hereunder:
a) The Contractor, its agents, subcontractors, and employees shall
perform the Work as independent contractors, and not as agents,
partners, joint venturers or employees of Sprint Spectrum. The
Contractor shall supervise and direct the Work, using the care and
skill ordinarily used by members of the Contractor's profession
practicing under similar conditions at the same time and in the same
geographic area, and the Contractor shall be solely responsible for
all construction means, methods, techniques, sequences and procedures
and for coordinating all portions of the Work.
b) Unless otherwise specifically provided in the Work, the Contractor
shall provide and pay for all labor, supervision, materials,
construction surveys and layout, equipment, tools, construction
equipment and machinery, water, heat, utilities, transportation, and
other facilities and services necessary for the proper execution and
completion of the Work, whether temporary or permanent, and whether or
not incorporated or to be incorporated in the Work
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and any other items incidental to the execution of the Work, all as
indicated or which may reasonably be implied from the Work.
c) The Contractor shall at all times enforce strict discipline and good
order among its employees and shall not employ on the Work any unfit
person or anyone not skilled in the task assigned to such person.
d) The Contractor hereby represents and warrants to Sprint Spectrum that
all materials and equipment incorporated in the Work will be new
unless otherwise requested in writing by the Contractor and agreed to
in writing by Sprint Spectrum prior to their use. All such materials
and equipment shall be subject to inspection and approval by Sprint
Spectrum. The Contractor further represents and warrants that the Work
to be performed under this Agreement, and all workmanship, materials
and equipment provided, furnished, used or installed in construction
of the same, shall be safe, substantial and durable construction in
all respects, and that all of the Work will be free from faults and
defects and in conformance with the terms of the Work. All of the
Work, including all materials and equipment, not conforming to these
requirements may be considered defective by Sprint Spectrum. This
warranty for each Site shall be for a period of twelve (12) months
from the date of final acceptance of the Work on each Site by Sprint
Spectrum (the "Warranty Period"). Nothing herein shall limit Sprint
Spectrum's right to seek recovery for latent defects which are not
observable until after the Warranty Period has expired. The warranty
provided herein shall be in addition to and not in limitation of any
other warranty or remedy required by law or this Agreement. The
Contractor will be responsible to make sure that all third-party
warranties flow through to Sprint Spectrum and will enforce all such
warranties for the benefit of Sprint Spectrum.
The Contractor agrees to correct any defective portion of the Work,
including all materials and equipment upon request and to the
reasonable satisfaction of Sprint Spectrum during the Warranty Period;
provided, however, that materials supplied by Sprint Spectrum which
are installed and tested by the Contractor and accepted by Sprint
Spectrum and are thereafter found to be defective shall be replaced by
the Contractor at the expense of Sprint Spectrum in accordance with
the Contractor's published rates as set forth on Exhibit C. If the
Contractor fails, after three (3) business days following notice from
Sprint Spectrum: (i) to commence and continue correction of such
defective Work with diligence and promptness; (ii) to perform the
Work; or (iii) to comply with any other provision of this Agreement,
Sprint Spectrum may correct and remedy any such deficiency. In
connection with such corrective
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and remedial action, Sprint Spectrum may exclude the Contractor from
all or part of the Site, take possession of all or part of the Work,
and suspend the Contractor's services related thereto, take possession
of and incorporate in the Work all materials and equipment paid for by
Sprint Spectrum which either are stored at the Site or are stored
elsewhere. The Contractor shall allow Sprint Spectrum, its agents,
representatives and employees, access to the Site to enable Sprint
Spectrum to exercise the rights and remedies as stated hereunder. All
claims, costs, losses and damages incurred or sustained by Sprint
Spectrum in exercising such rights and remedies will be charged
against the Contractor and may be deducted from monies due or to
become due to the Contractor; and Sprint Spectrum shall be entitled to
an appropriate decrease in the Construction Services Fee or any other
remedy permitted in this Agreement or allowed by law. Such claims,
costs, losses and damages will include, but not be limited to, all
costs of repair or replacement for work of others destroyed or damaged
by correction, removal or replacement of the Contractor's defective
work. No extension of the time for completion will be given or
inferred due to the exercise by Sprint Spectrum of Sprint Spectrum's
rights and remedies hereunder. The Contractor shall not be responsible
for reasonable delays caused by inclement weather which typically
delays a reasonable contractor's performance of work substantially
similar to the Work set forth herein.
e) The Contractor shall give all notices and comply with all laws,
ordinances, rules, regulations, and lawful orders of any public
authority bearing on the performance of the Work (hereinafter "Laws
and Regulations"), and shall promptly notify Sprint Spectrum if the
terms of the Work are at variance therewith.
Unless otherwise set forth herein, the Contractor shall obtain at its
expense, all necessary local and municipal permits, licenses,
inspections, certificates and approvals of the Work and shall ensure
compliance with all state environmental laws and shall furnish
utilities it may require to perform the Work. Sprint Spectrum shall
pay all fees for such permits, licenses, inspections, certificates or
approvals to the appropriate government body or other entity.
The Contractor shall at all times itself observe and comply with, and
cause all its agents and employees to observe and comply with, all
such existing and future Laws and Regulations; and shall protect and
indemnify Sprint Spectrum, its officers and agents, against any claims
or liability arising from or based
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upon violation of such Laws and Regulations, whether by itself or its
agents or employees.
f) The Contractor shall be responsible to Sprint Spectrum for the acts
and omissions of its employees, subcontractors and their agents and
employees, and other persons performing any of the Work under a
contract with the Contractor.
g) The Contractor at all times shall keep the Site free from accumulation
of waste materials or rubbish caused by its operations. At the
completion of the Work, the Contractor shall remove all its waste
materials and rubbish from and about the project as well as its tools,
construction equipment, machinery and surplus materials. If the
Contractor fails to clean up as provided pursuant to this Agreement,
Sprint Spectrum may do so and the reasonable cost thereof shall be
charged to the Contractor and may be deducted from monies due or to
become due to the Contractor.
h) The Contractor shall protect, maintain and secure the Work during
construction and until final acceptance of the Work. This protection,
maintenance and security shall be continuous so that the Work is
protected, maintained and secured in satisfactory condition at all
times. All costs of protection, maintenance and security before final
acceptance of the Work shall be part of the Construction Services Fee.
Should the Contractor, at any time, fail to so protect, maintain and
secure the Work, Sprint Spectrum, upon observing such failure, shall
notify the Contractor of such non-compliance and the Contractor shall
remedy such unsatisfactory condition within three (3) business days.
If the Contractor fails to remedy such condition, Sprint Spectrum may
suspend any of the Contractor's Work at a Site and Sprint Spectrum may
correct such unsatisfactory condition. Any protection, maintenance or
security cost incurred by Sprint Spectrum, shall be charged to the
Contractor and may be deducted from monies due or to become due to the
Contractor.
i) The Contractor shall acquire through assignment, purchase, license, or
other means, all rights required to fully utilize all technology,
know-how, trade secrets, inventions, processes, articles, procedures,
equipment, apparatus, devices, or any other part thereof, and any and
all things or matters that are to be used in pursuance of performance
of the Work under the terms and conditions of this Agreement.
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If a temporary, preliminary or permanent injunction is secured because
of an alleged patent or proprietary rights infringement, which
prevents Sprint Spectrum from using the process, materials or
equipment furnished, utilized or installed, the Contractor, at its
expense, shall within thirty (30) calendar days following notification
either: 1) procure the right for Sprint Spectrum to continue using the
same process, materials or equipment; or 2) modify the process,
materials or equipment, or provide a replacement process, materials or
equipment which is non-infringing, and is reasonably satisfactory to
Sprint Spectrum. The Contractor shall defend all suits or claims for
infringement of any patent or proprietary rights and shall save Sprint
Spectrum harmless from loss on account thereof. The obligations of the
Contractor under this paragraph shall survive the termination or
expiration of this Agreement.
j) Sprint Spectrum reserves the right to conduct, at its expense, any
test or inspection it may deem advisable to assure that construction,
supplies and services conform to the provisions of this Agreement,
including the Work. Two (2) types of testing will be required for
certain equipment and components covered under this Agreement: Cable
sweeps; and Megger Tests of five (5) ohms or less. All tests shall be
witnessed by representatives of Sprint Spectrum. It shall be the
responsibility of the Contractor to assure that such tests are
performed and shall submit the written test reports, results and
certificates to Sprint Spectrum, summarizing the results of all tests
and indicating satisfactory completion of all required tests. All such
reports, results and certificates shall be submitted prior to final
acceptance of the Work. Additional information concerning testing
requirements may be contained in the Work.
k) The Contractor shall take reasonable safety precautions with respect
to performance of this Agreement, shall comply with all safety
measures initiated by Sprint Spectrum and all applicable laws,
ordinances, rules, regulations and orders of public authorities for
the safety of persons or property. The Contractor shall report to
Sprint Spectrum within three (3) calendar days any injury to an
employee or agent of the Contractor which occurred at a Site.
If hazardous substances of a type for which an employer is required by
law to notify its employees are being used on a Site by the
Contractor, its subcontractors or anyone directly or indirectly
employed by them, the Contractor shall, prior to exposure of any
employees on a Site to such substance, give written notice of the
chemical composition thereof to Sprint Spectrum, any subcontractors or
other employers on such Site, in sufficient
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detail and time to permit compliance with such laws by Sprint
Spectrum, other subcontractors and other employers on such Site.
In the event that the Contractor encounters on the Site material
reasonably believed to be asbestos or polychlorinated biphenyl
("PCB"), which has not been rendered harmless, the Contractor shall
immediately stop Work in the area affected and report the condition to
Sprint Spectrum in writing. The Work in the affected area shall resume
in the absence of asbestos or PCB, or when it has been rendered
harmless.
l) The Contractor may be ordered in writing by Sprint Spectrum without
invalidating this Agreement, to make changes in the Work within the
general scope of this Agreement consisting of additions, deletions or
other revisions, the Construction Services Fee and time for completion
being adjusted accordingly. The Contractor, prior to the commencement
of such changed or revised portion of the Work, shall submit promptly
to Sprint Spectrum written copies of a claim for adjustment to the
Construction Services Fee, and time for completion, for such revised
Work in a manner consistent with requirements of this Agreement. The
Contractor may request a change in the Work by providing Sprint
Spectrum with a written request describing the change. If such change
is acceptable to Sprint Spectrum, Sprint Spectrum shall provide a
written change order to the Contractor as set forth above. Sprint
Spectrum shall have five (5) working days to either provide the
Contractor with the requested change order or provide written notice
that the request is denied. If Sprint Spectrum fails to provide such
notice within the five (5) business day period, the requested change
order will be deemed to have been accepted by Sprint Spectrum. The
Contractor shall not perform any change in the Work, including
additions, deletions or other revisions, without prior written
authorization from Sprint Spectrum.
m) To the fullest extent permitted by law, the Contractor shall defend,
indemnify and hold harmless Sprint Spectrum and its agents and
employees from and against all liability, claims, damages, losses and
expenses of whatever nature, including, but not limited to attorneys'
fees arising out of or resulting from the performance of the Work,
provided that any such liability, claim, damage, loss or expense 1) is
attributable to bodily injury, sickness, disease or death, or to
injury to or destruction of tangible property including the loss of
use resulting therefrom, and 2) caused in whole or in part by any
negligent act or omission or act of willful misconduct of the
Contractor, any subcontractor, anyone directly or indirectly employed
by any of them or anyone for whose acts any of them may be liable,
regardless of whether or not it is caused in part by a
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party indemnified hereunder. Such obligation shall not be construed to
negate, abridge or otherwise reduce any other right as to any party or
person described in this paragraph. In any and all claims against
Sprint Spectrum or any of its agents or employees, by an employee of
the Contractor, any subcontractor, anyone directly or indirectly
employed by any of them or anyone for whose acts any of them may be
liable, the indemnification obligation under this paragraph shall not
be limited in any way by any limitation on the amount or type of
damages, compensation or benefits payable by or for the Contractor or
any subcontractor under workers' or workmen's compensation acts,
disability liability benefits acts or other employee benefit acts. The
above obligations shall survive the termination or expiration of this
Agreement.
n) The Contractor shall purchase and maintain insurance for protection
from claims under Workers' Compensation and other employee benefit
acts, claims for damages because of bodily injury, including personal
injury, sickness or disease or death. The Contractor shall also
purchase and maintain insurance for protection from claims or damages
to property, including loss of use resulting therefrom, which may
arise out of or result from the Contractor's operations under this
Agreement, whether such operations be by the Contractor, its employees
and agents, or any subcontractor and its agents and employees or
anyone directly or indirectly employed by any of them. The insurance
shall be written by companies and with limits and coverage acceptable
to Sprint Spectrum in accordance with Exhibit A attached. The limits
specified shall not act to limit the liability of the Contractor or
the indemnification obligation of the Contractor. The Contractor and
its subcontractors shall require their insurance carriers, with
respect to all insurance policies, to waive all rights of subrogation
against Sprint Spectrum. Certificates of such insurance shall be filed
with Sprint Spectrum prior to commencement of the Work, with such
Certificates indicating thirty (30) days notification in writing to
Sprint Spectrum if material change or cancellation takes place, and
certificates shall also indicate that Sprint Spectrum L.P. shall be
named as additional insured as respects the operations of the insured
in accordance with the Construction Agreement. Copies of the entire
insurance policies will be provided upon request.
o) If the Contractor persistently or repeatedly fails or neglects to
carry out the Work at a Site in accordance with this Agreement, or
fails to observe the safety rules and other rules and regulations
governing performance of the Work at a Site, and fails within five (5)
business days after receipt of written notice to commence and continue
correction of such default or neglect with diligence and promptness,
Sprint Spectrum may, without prejudice to any other
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remedy that Sprint Spectrum may have, terminate the Contractor and
finish the Contractor's Work at a Site by whatever method Sprint
Spectrum may deem expedient. If the expense of finishing the
Contractor's Work at a Site exceeds the value of the Construction
Services Fee, the Contractor shall pay the difference to Sprint
Spectrum. The Contractor shall not be responsible for delays caused by
inclement weather which typically delays a reasonable contractor's
performance of work substantially similar to the Work set forth
herein.
To the extent the Contractor is terminated at a Site, the Contractor
shall immediately take all steps to protect the subcontracts for
labor, materials, equipment or services with respect to the
termination. Sprint Spectrum may then withhold payment to the
Contractor until after the Work pursuant to this Agreement is
completed in a satisfactory manner.
p) The Contractor understands that Sprint Spectrum may remove the
Contractor and/or suspend performance of the Work upon request of the
owner ("Owner") or lessor ("Lessor") of the Site where the Work is to
be performed if the Owner or Lessor reasonably believes that the
Contractor is failing to satisfactorily perform the Work.
q) The Contractor agrees to be bound by all of the provisions of the
contract between Sprint Spectrum and the Owner or Lessor insofar as
they apply to the Work to be performed under this Agreement. The
Contractor acknowledges receipt of a copy of any such contract prior
to commencement of the Work.
r) The Contractor, for itself and for its subcontractors, materialmen,
mechanics and all persons under it, hereby waives the right to any
lien against the ground, structures or any improvements on each Site
for Work or labor done or materials furnished pursuant to this
Agreement. If requested by Sprint Spectrum, the Contractor agrees to
execute a "no-lien" agreement on a form supplied by Sprint Spectrum.
7. Where the Contractor owns or manages the selected Sites and Sprint Spectrum
is required to exercise its rights under Paragraphs 6(d), (o) or (p) above,
the Contractor grants Sprint Spectrum, its employees, contractors,
subcontractors or agents, the right to enter upon such Sites and to perform
the necessary work.
8. Sprint Spectrum intends to protect its proprietary information, together
with proprietary information of the Owner or Lessor, which may be disclosed
during business transactions with the Contractor. Sprint Spectrum and the
Owner or Lessor
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have devoted substantial time and expense in the field of wireless
communications and, in doing so, have acquired proprietary information
which they desire to remain confidential in order to promote their
corporate growth and security. The business relationship between and among
Sprint Spectrum, the Owner or Lessor, and the Contractor will entail the
possible disclosure of certain proprietary information to one another,
including, among other things, information regarding each parties'
respective assets, liabilities, operations, financial conditions,
employees, plans, prospects, management, investors, products, strategies
and techniques, the technical characteristics and operations of each
parties' products, and the identity of suppliers and customers and the
nature and extent of their business relationships with such party.
Therefore, Sprint Spectrum and the Contractor agree to the following
conditions:
a) All proprietary information of Sprint Spectrum and of the Owner or
Lessor will be treated with the strictest confidence. Contractor will
not disclose proprietary information to any third party and will not
make use of that proprietary information, except for such information
necessary to transact business between Sprint Spectrum and the
Contractor. The Contractor shall not provide proprietary information
to individuals not significantly involved in the proposed transaction.
b) The Contractor shall not develop any new techniques or ideas relating
to Sprint Spectrum's proprietary information or that of the Owner or
Lessor that would have a negative impact on their competitiveness.
For purposes of this Paragraph 8, Sprint Spectrum PCS Network, RF design
criteria and search areas are deemed to be proprietary.
9. During the term of this Agreement and for two (2) years thereafter (the
"Restricted Period"), neither the Contractor nor Sprint Spectrum will
adversely affect the reputation of the other party or of the Owner or
Lessor of a Site nor disclose information to any entity concerning their
business affairs. During the Restricted Period, the Contractor and Sprint
Spectrum also agree not to divert or solicit any of the other party's
employees on behalf of itself. For so long as the Contractor is providing
services to Sprint Spectrum, and for two years following completion of
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those services, the Contractor agrees not to become an investor, partner,
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shareholder, officer, director, joint venturer or affiliate of any kind
with an entity providing PCS services or creating a PCS Network in the
Pittsburgh Metropolitan Area.
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10. Because money damages would not be sufficient remedy for a breach of this
Agreement, Sprint Spectrum shall be entitled to obtain injunctive relief in
addition to monetary damages if a breach were to occur.
11. The Contractor shall defend, indemnify, save and hold harmless Sprint
Spectrum, its parents, subsidiaries, affiliates, their directors, officers,
agents, and the employees from any and all liabilities, claims, or demands
(including costs, expenses, and reasonable attorney's fees) that may be
made by any person, specifically including, but not limited to, employees
or agents of the Contractor, and including but not limited to, employees or
agents of the Contractor's subcontractors, for injuries, including death to
persons, or damage to property, including theft, arising out of this
Agreement, by reason of any act, omission, misconduct, negligence or
default on the part of the Contractor, any subcontractor or any employee of
the Contractor or subcontractor; and, except, as may otherwise be provided
by applicable law, such rights to indemnification shall obtain regardless
of whether any act, omission, misconduct, negligence or default (other than
gross negligence or willful misconduct) of Sprint Spectrum or its employees
contributed or may be alleged to have contributed in any way thereto. The
Contractor shall defend Sprint Spectrum at Sprint Spectrum's request
against any such liability, claim or demand. The foregoing indemnification
shall apply whether the Contractor or Sprint Spectrum defends such suit or
claim and shall extend to any costs incurred by Sprint Spectrum to enforce
the terms of this indemnification. Sprint Spectrum agrees to notify the
Contractor promptly of any written claims or demands against Company for
which the Contractor is responsible hereunder.
12. If the Contractor causes damage to the work or property of any separate
vendor on the Site, the Contractor shall, upon due notice, settle with such
separate vendor by agreement. If such separate vendor sues Sprint Spectrum
on account of any damage alleged to have been so sustained, Sprint Spectrum
shall notify the Contractor of such proceedings. The Contractor shall
indemnify and hold Sprint Spectrum harmless from and pay or satisfy any
judgment which may be entered against Sprint Spectrum in any such
proceedings. The Contractor shall reimburse Sprint Spectrum for any and all
reasonable attorney's fees and court costs which Sprint Spectrum may incur
incident to the defense of the said claim, whether or not the claim is
defended by Sprint Spectrum or the Contractor.
13. It is mutually agreed that any controversies, disputes or claims of any
nature arising out of or relating to this Agreement, or the breach thereof,
may, at the discretion of either party to this Agreement, be settled by
Arbitration in accordance with the then current Construction Industry
Arbitration Rules of the American Arbitration Association (in the
Pittsburgh, Pennsylvania office only) and that all findings and
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decisions by the Arbitrators shall be conclusive and binding on both
parties and shall not be appealable and judgment upon the award rendered by
the Arbitration Panel may be entered into the Court of Common Pleas of
Allegheny County. Upon the written request of Sprint Spectrum, the
Contractor shall join any subcontractor of the Contractor in such
Arbitration. Nothing in this section of this Agreement's provisions shall
create any claim, right or cause of action in the favor of the
subcontractor against Sprint Spectrum.
If so determined by the Arbitrators, and to the extent so determined by the
Arbitrators, the fees, costs and expenses of the Arbitration shall be borne
by the party against whom the Arbitration is determined.
The Contractor shall proceed with the Work under this Agreement during any
claims, disputes, questions or related matters or proceedings unless
otherwise agreed to by the Contractor and Sprint Spectrum in writing. If
the Contractor is proceeding with the Work or any portion thereof, under
protest, the Contractor must notify Sprint Spectrum in writing prior to
commencing of the Work or any such portion.
No payment or partial payment on any claim shall be made prior to final
resolution of such claim.
Sprint Spectrum and the Contractor agree that they shall not make any claim
against any officer, agent, or employee of the other party to this
Agreement for, or on account of, any act or omission to act in connection
with this Agreement, except for acts of willful misconduct, and the parties
hereby waive any and all rights to make any such claim or claims.
Notwithstanding the foregoing, the rights to injunctive relief set forth in
Paragraph 10 hereof, may be heard only by the state or federal courts
located in Allegheny County, Pennsylvania.
14. This Agreement, being one of personal services, may not be assigned by the
Contractor nor may any obligation of the Contractor hereunder be assumed by
any other person or third party without the prior written consent of Sprint
Spectrum.
15. Any notice or demand required to be given in this Agreement shall be made
by certified or registered mail, return receipt requested, or reliable
overnight courier to the address of other parties set forth below:
Contractor: Crown Network Systems, Inc.
Xxxx Xxxxxx Xxxx XXX, Xxxxx 000
Xxxxxxxxxx, XX 00000
INDEPENDENT CONTRACTOR AGREEMENT
PAGE 14 OF 15
--------------------------------------------------------------------------------
Attn: Xxxxxx X. Crown, President
Sprint Spectrum: Sprint Spectrum,X.X.
Xxxx Xxxxxx Xxxx XX, Xxxxx.000
Xxxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx, Director of Operations
and Engineering
Any such notice is deemed received one (1) business day following deposit
with a reiable overnight courier or two (2) business days following deposit
in the United States mails addressed as required above. Contractor or
Sprint Spectrum may from time to time designate any other address for this
purpose by written notice to the other party.
16. This Agreement may be executed simultaneously in several counterparts, each
of which shall be deemed to be an original, but all of which shall
constitute one and the same instrument.
17. This Agreement shall be binding upon Sprint Spectrum and the Contractor,
their respective successors and assigns. Moreover, if any portion of this
Agreement shall be deemed legally unenforceable, the unenforceability of
that particular portion, including its restrictive covenants, shall not
limit the enforceability of that particular portion, including its
restrictive covenants, shall not limit the enforceability of any other
provision.
18. All obligations under this Agreement unless otherwise provided herein,
shall be for a period of two years from the date of this Agreement.
19. Neither party shall disclose the terms of this Agreement to an unaffiliated
third party (other than attorneys, accountants, or lenders, or as part of
financial statements or to a prospective purchaser of all or substantially
all of the business or assets of the disclosing party) unless such terms
are or become publicly available (other than through unauthorized
disclosure by the parties), as required by law to be disclosed, or with
the prior written consent of the nondisclosing party.
20. Time is of the essence of this Agreement; it being understood that if the
Contractor is delayed in the progress of the Work by changes ordered in the
Work, by labor disputes, fire, unusual delay in deliveries of materials, or
unavoidable casualties the time for performance shall be extended for the
period of such delay, but, for all Sites where a Notice to Proceed is
issued within 90 days of the date hereof, such extension be for more than
30 days.
INDEPENDENT CONTRACTOR AGREEMENT
PAGE 15 OF 15
--------------------------------------------------------------------------------
21. The laws of the Commonwealth of Pennsylvania, disregarding conflict of law
principles, shall govern this Agreement. Further, each party submits to the
jurisdiction of any federal or commonwealth court sitting in Allegheny
County, Pennsylvania.
Intending to be legally bound hereto, this Agreement is entered into by the
parties as of the day and year written above.
Crown Network Systems, Inc.
/s/ Xxxxxx Crown Pres. /s/ Xxxxxxxx X. Xxxxx
--------------------------------- ----------------------------------
Xxxxxx Crown, President Witness
Xxxxxxxx X. Xxxxx
----------------------------------
Print Name
Sprint Spectrum L.P.
/s/ Xxxx Xxxxxxx /s/ Xxxx Xxxxxxx
--------------------------------- ----------------------------------
Xxxx Xxxxxxx Witness
Assistant Vice President, Engineering
and Operations, East Region Xxxx Xxxxxxx
----------------------------------
Print Name
EXHIBIT A
---------
INSURANCE REQUIREMENTS
Commercial general liability insurance providing coverage for operations and for
contractual liability with respect to liability assumed by subcontractor herein.
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.
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.
Workers' Compensation insurance with statutory limits of coverage.
Excess liability insurance in the umbrella form with a combined single limit of
$5,000,000.
The insurance carriers and the form of the insurance policies shall be subject
to approval by Sprint Spectrum, which approval shall not be unreasonably
withheld or delayed. Sprint Spectrum shall be named as an additional insured on
all such policies. All insurance policies provided hereunder shall be endorsed
to provide Sprint Spectrum with thirty (30) days' notice of cancellation and/or
restriction. If the initial insurance policies required by this Agreement expire
prior to the completion of the Work, renewal certificates of insurance of policy
shall be furnished thirty (30) days prior to the date of their expiration. The
Contractor shall furnish to Sprint Spectrum certificates of such insurance
issued by the insuring carrier in a form satisfactory to Sprint Spectrum within
ten (10) days of the execution of this Agreement but in any case, prior to
commencement of the Work, and thereafter upon written request of Sprint
Spectrum. The fulfillment of such obligations, however, shall not otherwise
relieve the Contractor of any liability assumed by the Contractor hereunder or
in any way modify the Contractor's obligations to indemnify Sprint Spectrum.
EXHIBIT "C"
-----------
CROWN NETWORK SYSTEMS, INC.
Any additional services performed by Contractor shall be subject to the
following hourly rates:
CLASSIFICATIONS RATES
--------------- -----
President [*]
Legal [*]
Vice President [*]
Program Director [*]
Operations Manager [*]
Operations Supervisor [*]
Construction Coordinator [*]
Property Site Researcher [*]
Project Manager [*]
Draftsman [*]
* Tower Rigger [*]
* Skilled Laborer [*]
* Technician [*]
Office Clerical [*]
* Electrician [*]
All hourly rates above do not include reasonable travel and lodging
expenses and shall be invoiced by the quarter-hour.
EQUIPMENT RATES
--------- -----
580 Backhoe [*]
Equipment Truck/Class 1 (daily) [*]
Mileage Charge [*]
Equipment Truck/Class 2 (daily) [*]
Mileage Charge [*]
18 Ton Truck Crane [*]
28 Ton Truck Crane [*]
Tractor Trailer with 40 Ton Lowboy [*]
Tractor Dump Trailer [*]
Single Axle Dump Truck [*]
977L High Lift [*]
D4 Dozer [*]
Uniloader [*]
Vibratory Roller [*]
Operator Overtime [*]
Quickie Saw (daily) [*]
[*] Indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
Tamper (daily) [*]
Chain Saw (daily) [*]
Portable Generator (daily) [*]
* Only those Classifications with asterisks are includable as costs in the
Contractor's proposal for the Construction Services Fee.
[*] Indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
EXHIBIT "B"
-----------
CONSTRUCTION MANAGEMENT
-----------------------
Site Assessment
- Site walk and development of Site plan with Sprint Spectrum
Construction
- Frequency capability study
- Space planning in buildings
Site Plan/Site Survey/Construction Documentation
- Provide copies of existing Site plan as prepared by a land surveyor
for each Site
- Provide CAD drawings of Site design including as-built drawings
defining antenna layout, equipment layout, AC and Telco interconnect
locations and Site grounding
- Provide copies of existing tower design and manufacturers structural
capabilities
Management Services
- Develop a scope of work for each Site
- Develop a materials list for each Site including but not limited to,
antennas, coaxial cable, connectors, mounting brackets, wave guide,
cable ladder, grounding kits, cable ports, weather proofing kits and
jumpers
- Manage the Building Permit process to include preparation of
documents, meetings with permit officials to develop a complete permit
package, filing the permit. Permit fees will be paid by Sprint
Spectrum
- Manage all Site construction activities including but not limited to,
subcontractors schedules, coordination of deliveries, on-site
management, ordering and installation of AC power and Telco
- Final Site walk-down with Sprint Spectrum to develop a "Punch list"
and completion of the "Punch list" activities
- Make the Site available for equipment installation by Lucent and
assure Lucent's installers maintain approved Site standards
WAREHOUSING AND MATERIAL HANDLING
---------------------------------
- Order third party materials from Sprint Spectrum approved vendors with
no additional markup, including but not limited to, Coaxial cable,
connectors, grounding kits, antennas, jumpers and mounting brackets
EXHIBIT "B" cont'd
- Store materials at Contractors warehouse
- Manage material distribution from Contractor's warehouse to each Site
- Asset management to assure proper use, storage and tracking and
security of Sprint Spectrum materials
CONSTRUCTION SERVICES
---------------------
All construction is to be performed in strict compliance with standards,
specifications and drawings approved by the Sprint Spectrum Wireless
Implementation Manager and will include but not be limited to:
- Preparation for and installation of ground pad and/or mounting
brackets for PCS Base Station equipment
- Installation of GPS and PCS antennas and supporting brackets and
mounts
- Preparation and installation of coaxial cables, connectors, waterproof
connector covers, grounding kits and accessories between the Base
Station equipment and the antennas
- Preparation and installation of disaster prevention grounding system
to include the grounding ring and equipment grounds
- Other mutually agreed upon miscellaneous constructions tasks as may be
reasonably requested from time to time by Sprint Spectrum
ADDENDUM TO THE INDEPENDENT CONTRACTOR AGREEMENT
between
Crown Network Systems, Inc.
and
Sprint Spectrum L.P.
dated 08 July 1996
____________________________________
THIS ADDENDUM is entered into this 12th day of November 1997, by and between
---- --------
CROWN NETWORK SYSTEMS, INC., a Pennsylvania corporation (the "Contractor"),
with an office at Xxxx Xxxxxx Xxxx XXX, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxxxxxx
00000 and SPRINT SPECTRUM L.P., a Delaware limited partnership ("Sprint
Spectrum"), with an office at Xxxx Xxxxxx Xxxx XX, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxxxxxxx 00000.
WHEREAS, Contractor and Sprint entered into an Independent Contractor
Agreement dated July 8, 1996, under which Contractor was approved to perform
construction services for Sprint Spectrum on selected communications sites for
Sprint Spectrum's Personal Communications System ("PCS") in the Pittsburgh
Metropolitan Trading Area; and,
WHEREAS, Contractor and Sprint have agreed that certain inventory for
Sprint Spectrum must be warehoused; and,
WHEREAS, Contractor has the space available for such warehousing of
equipment;
NOW THEREFORE, in consideration of the mutual covenants contained in this
Addendum and for other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties intending to be legally bound agree to the
following terms and conditions.
1. Contractor does hereby lease, remise and let to Sprint Spectrum, for the
purpose hereinafter set forth, certain dedicated contiguous storage space as
herein further defined, being part of 0000 Xxxxxxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxxxxxx, operated by Contractor (the "Resource Center");
TOGETHER WITH such routes of ingress and egress thereto and therefrom as
are presently held by Contractor;
TO HAVE AND TO HOLD initially a maximum of 5,000 square feet of dedicated
contiguous storage space, both indoor and outdoor, such locations to be
indicated in Exhbit "A" to this Addendum ("Storage Space").
1
2. The term of the occupancy of the storage space shall be month-to-month,
commencing on October 27, 1997. This tenancy automatically renews itself for
subsequent one month periods until notice of cancellation is served on either
party at least 15 days prior to the expiration of the current monthly term.
3. Sprint Spectrum agrees that its agents, servants and workmen will be
allotted the use of parking spaces available at the Resource Center location on
a first-come first-serve basis. It is further understood and agreed that all
truck traffic areas will remain unobstructed, free and clear at all times.
4. The parties to this Addendum do hereby further agree that the monthly
rental fee for the indoor storage space shall be [*]; and [*] for outdoor space.
It is further understood and agreed that the square footage charge will be
based on the greater of 1,000 square feet or on the actual space that Sprint
Spectrum is occupying.
The Contractor will provide a rate structure for shipping of inventory from
Resource Center to a particular construction site or other mutually agreed upon
locations, which will be available for Sprint Spectrum and all of its agents,
servants and workmen.
5. The parties to this Addendum do hereby further agree that all required
equipment and trained operators of Contractor at the Resource Center will be
provided on a time and material basis with no minimum requirements. The parties
hereto agree and understand that the standard rates for "typical" equipment to
be used at the Resource Center are as follows:
Crane (35 ton) [*]
Forklift [*]
Pallet Xxxx [*]
Boom Truck (23 ton) [*]
Additional equipment may be supplied as required with rates for such
equipment to be provided on an as-need basis.
6. Any permits for oversize equipment/material hauling will be a reimbursable
cost and passed directly on to Sprint Spectrum. Any expense that requires
reimbursement from Sprint Spectrum must be approved, in writing, in advance of
the billable expense in this regard.
2
[*] Indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
Contractor may provide the following heavy equipment based on a cost per
job basis with such cost to be determined by Contractor at time of use:
Truck Tractor and Semi-Tractor (40 ft. Flatbed or 35 ton Lowboy)
22 ft. Dry Van (Box Truck)
Stake Truck
Pickup Truck
Five Ton Tag-along Trailer
7. Resource Center activities not included in this Addendum include, but are
not limited to, long distance transportation, special materials handling,
operations at remote warehouses, out-of-state operations, etc., and will be
quoted on an as-needed basis.
8. The parties understand and agree that the Contractor will supply employees
to work in the storage space on an "as-needed" basis at a standard time and rate
of [*].
9. Contractor agrees that its employees will handle the "batteries" for Sprint
Spectrum provided that the batteries are shipped and packaged in accordance with
Contractor's standards. Contractor's standards shall be specifically outlined
and communicated, in writing, to Spring Spectrum, upon execution of this
Addendum.
10. Contractor agrees to provide reasonable maintenance and general custodial
service to the storage space and Resource Center, i.e. parking lots, washrooms,
doors, lights, water, sewage, driveway and snow removal. Contractor further
agrees to provide the cleaning supplies and services.
11. Contractor further agrees that Sprint Spectrum shall have 24 hour, seven
day accessibility to the Resource Center and storage space. Sprint Spectrum
agrees that office space accessibility shall be limited and restricted to the
hours between 6:00 a.m. and 6:00 p.m., Monday through Saturday.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
3
[*] Indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
executed by their respective duly authorized representatives as of the day and
year first above written.
Attest: Crown Network Systems, Inc.
/s/ Xxxxxxx X. Crown By: /s/ Xxxxxx Crown
-------------------- ------------------------------
(seal) Xxxxxx Crown, President
Witness: Sprint Spectrum L.P.
/s/ Xxxx Xxx By: [SIGNATURE ILLEGIBLE]
------------------- ------------------------------
[SIGNATURE ILLEGIBLE]
Title:---------------------------
4
