EXHIBIT 10.31
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Confidential Treatment Requested
under 17 C.F.R.(S)(S)200.80(b)(4)
200.83 and 230.406
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[LOGO OF METRICOM APPEARS HERE]
MASTER SERVICES AGREEMENT
THIS MASTER SERVICES AGREEMENT (the "Agreement"), effective September 21, 1999
(the "Effective Date") by and between METRICOM, INC. a Delaware corporation
(hereinafter referred to as "Metricom") and WIRELESS FACILITIES, INC., a
Delaware corporation, and its affiliates (hereinafter referred to as "WFI") sets
forth the terms and conditions ("Terms and Conditions") for the acquisition of
WFI's services. Services acquired hereunder shall be described in a Statement of
Work attached hereto as an exhibit. The terms of each Statement of Work, taken
together with these Terms and Conditions, shall constitute a separate agreement
("Agreement") and shall be considered independent of any other agreements
between the parties that incorporate these Terms and Conditions. Each Statement
of Work shall incorporate these Terms and Conditions by reference. Any terms
and conditions in said Statement of Work which expressly supersedes any terms
and conditions in these Terms and Conditions shall apply only to the specific
services defined in said Statement of Work. (Metricom and WFI are each
hereinafter referred to individually as a "Party" or collectively as "Parties").
WHEREAS, Metricom intends to acquire sites and construct facilities in order to
develop and operate a wireless Mobile Data Services system (the "Project")
WHEREAS, the Parties have reached an agreement whereby WFI will provide various
business and strategic consulting, network development design and development
services to Metricom in connection with the Project as requested by Metricom and
as set forth in a Statement of Work.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, and intending to be legally bound, the Parties
agree as follows:
ARTICLE I DEFINITIONS
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1.1 Definitions. Unless the context clearly requires otherwise, each of the
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following terms, when used in this Agreement with initial capitals, shall have
the meaning set forth for such term below:
Accepted Engineering Practices means those current standards of care and
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diligence normally practiced by recognized engineering firms in performing
services of nature similar to that of the Services.
Affected Party shall have the meaning as set forth in Section 11.1.
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Affiliates shall mean any entity that directly or indirectly controls, or is
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controlled by, or is under common control by a party. The term "control" in
this Section shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of an entity,
whether through the ownership of voting securities, by contract or otherwise.
Agreement means this Agreement for Engineering, Procurement and Construction
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(including all Exhibits).
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Amendment means a written amendment to this Agreement executed by Metricom and
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WFI as provided in Section 2.7 (a).
Beneficial Use shall mean possession of or any commercial use of the Services by
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the Metricom whether Metricom accrues any compensation therefore or not.
Business Day means any Day on which commercial banks are not authorized or
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required to close (but, in any event, excluding Saturdays and Sundays).
Change, Changed means any change in (i) the Services, (ii) the Statement of
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Work, (iii) the Project Cost or (iv) the Project Schedule.
Change Directive means written directive by Metricom's Representative
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authorizing WFI to perform changed Services prior to execution of a Change
Order.
Change in Laws and Regulations has the meaning set forth for that term in
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Section 2.8(b).
Change Order means a written order regarding a Change issued, accepted and
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executed by Metricom and WFI in accordance with Article IV.
Claims has the meaning set forth for that term in Article 7.
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Commercial Operations Date means the first day following Provisional Acceptance.
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Components means any and all systems, subsystems, assemblies, subassemblies,
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materials and equipment (including parts, instruments, software, and hardware),
and every item of whatever nature, including all documentation related thereto,
incorporated into the Services or the Services and to be provided by WFI or its
Vendors or Subcontractors under this Agreement, but excluding all Construction
Aids.
Confidential Information shall mean any confidential or proprietary
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information, including without limitation, any design tools, designs,
schematics, source code, plans or any other information relating to any research
project, Services in process, future development, scientific, engineering,
manufacturing, marketing or business plan, or financial or personnel matter
relating to either party, its present or future services, sales, suppliers,
customers, employees, compensation, investors or business, identified and marked
by the disclosing party as "Confidential Information," whether in oral, written,
graphic or electronic form. If disclosed in oral form, such Confidential
Information must be reduced to writing and marked as Confidential Information
within thirty (30) days following disclosure.
Construction Aids means all materials, supplies, construction equipment,
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construction tools, field office equipment, field office supplies, scaffolding
and form lumber, temporary buildings and facilities, computer software and
computer hardware used in design and other items that are required for the
Services but which are not intended to become a permanent part of the Services.
Contamination has the meaning set forth for that term in Section 3.6.
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Day means a calendar day unless otherwise stated or unless the context within
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which such term is used clearly indicates another meaning.
Debtor Relief Law has the meaning set forth for that Section 10.1 (d).
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Deliverables shall mean any agreements, products, designs, schematics,
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tools, code, technical data, inventions, know-how and associated Intellectual
Property Right created during the performance of the Services as set forth in
the applicable Statement of Work, and any Documentation related to any of the
foregoing.
Documentation shall mean any installation, operation, administrator and end
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user manuals, any site preparation guides or configuration guides, any media
containing any of the foregoing, as well as any other operations and maintenance
manuals, training materials and other technical and user documentation,
including without limitation any schematics, design documents, analyses and
technical overviews.
Effective Date means the date on which this Agreement is executed and delivered
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by the parties.
Environmental Laws means all federal, state and local laws, rules, regulations,
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orders, standards and interpretations concerning environmental matters to the
extent applicable to the Services or the operation thereof.
Extraordinary Site Conditions means (i) any unknown man-made subsurface
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obstruction or archeological artifacts not disclosed by investigations or
reports performed or provided to WFI and (ii) any contamination, hazardous
materials or waste, excluding such waste brought to the Site by WFI,
Subcontractors or Vendors in the performance of the Services.
Final Completion shall have the meaning set forth for that term in Section 9.4.
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Final Completion Date means the date on which Final Completion occurs.
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Final Plans and Specifications means the final drawings, technical
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specifications and operations and maintenance procedures and specifications to
be prepared by WFI with respect to the Services in accordance with the Statement
of Work.
Final Invoice has the meaning set forth for that term in Section 5.6.
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Force Majeure has the meaning set forth for that term in Section 11.1.
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Functional Tests means the various tests, if any, of the Services and its
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Components to be completed as part of the Statement of Work.
Indemnified Persons has the meaning set forth for that term in Section 7.1.
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Initial Term shall have the meaning as set forth in Section 2.2.
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Intellectual Property Rights shall mean any and all intellectual property
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and/or proprietary rights, including without limitation, all mask Services
rights, all copyrights (including rights in audiovisual Services), moral rights,
trademarks, trade names, patent rights (including patent applications and
disclosures) and trade secret rights, now known or hereafter recognized in any
jurisdiction in the world.
Invoice means the monthly invoice to be submitted by WFI to Metricom in
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accordance with and as defined in Section 5.3.
Laws and Regulations means all federal, state and local laws, rules,
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regulations, orders, codes, standards (including building and related codes and
standards) and interpretations, including the Occupational Safety and Health Act
(1970), the Permits, all Environmental Laws and all applicable equal employment
opportunity programs.
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Mechanics' or Materialmen's Lien has the meaning set forth for that term in
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Section 10.3.
Metricom has the meaning set forth for that term in the Preamble to this
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Agreement.
Metricom Permits means all Permits with respect to the Services required to be
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taken out in the name of Metricom which are necessary for the performance of the
Services.
Metricom's Representative means the person(s) who, from time to time, shall be
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authorized by Metricom in writing to act on behalf of Metricom and with whom WFI
may consult as set forth in Section 3.1.
Milestone Payment Schedule means the schedule of the payments to be made to WFI
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for the performance of the Services which is set forth in Exhibit III.
Milestone Payments means the monthly payments against the Project Cost payable
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pursuant to Section 5.5.
Miscellaneous Equipment and Furnishings means maintenance tools, maintenance
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equipment, spare parts, and laboratory furnishings and equipment.
Network means the network described in the Statement of Work.
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Notice shall have the meaning as set forth in Section 16.2.
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Notice to Proceed has the meaning set forth for that term in Section 2.3.
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Permits means the licenses and permits required for the construction and
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operation of the Project
Program Director means the person designated by WFI who shall be authorized to
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act on behalf of WFI and with whom Metricom or Metricom's Representative may
consult as set forth in Section 2.7(a).
Program Manager means the person designated by the Program Director with the
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delegated authority to act on behalf of WFI and with whom Metricom or Metricom's
Representative may consult as set forth in Section 2.7(a).
Progress Report has the meaning set forth for that term in Section 2.7(c).
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Project Cost means the budgeted estimated project cost price for the Services,
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as adjusted pursuant to Article IV.
Project Schedule means the schedule for the carrying out and completion of the
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Services which is attached hereto as Exhibit II.
Property means the Services, the Project, the Site and the real property of
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which the Site is a part.
Punch List Items means administrative items or other items of the Services the
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cost of which is immaterial and the omission of which would not adversely affect
the safe Commissioning and Testing or commercial operation of any Component or
the Services as contemplated under Section 9.3(a).
Renewal Term shall have the meaning as set forth in Section 2.2.
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Risk of Loss Date means the date set forth for that term is Section 7.3.
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Schedule of Values means the schedule in Exhibit III of the milestones in WFI's
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performance of the Services which are to be completed as a condition to WFI's
right to receive each of the payments to be made pursuant to the Milestone
Payment Schedule.
Services means the procurement, supply or provision of all Components (including
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materials, supplies and equipment), Documents and all other things, and the
performance, procurement, supply or provision of all Services (including all
labor) as set forth in the Statement of Work, in each case as necessary or
reasonably appropriate to accomplish the design, engineering, procurement,
construction management, Substantial Completion, and Final Completion of the
Services, all in accordance with Article II, the Statement of Work and the Final
Plans and Specifications.
Site means the physical location of the candidate and/or selected base station,
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base station controller or mobile switching center site, as the case may be, and
all structures, improvements, foundations, towers, and other facilities
necessary to house or hold equipment and all other related third party
equipment.
Statement of Work means the total extent and general description of the Services
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as set forth in Exhibit I.
Subcontractor(s) means those persons or companies who have a contract with WFI
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or any other person or entity for the performance of any part of the Services,
including Subcontractors of whatever tier.
Substantial Completion means completion of the physical construction of the
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Services, and the completion of other Services (with the exception of Punch List
Items, Testing and delivery of as-built drawings in accordance with Exhibit I,
the Statement of Work and the Final Plans and Specifications, to such point that
the Services shall be ready for Commissioning.
Suspension Period shall have the meaning as set forth in Section 10.5.
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Taxes has the meaning set forth for that term in Section 5.4.
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Testing means the conduct of the Tests of the Services in accordance the
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Statement of Work.
Vendor(s) means those persons or companies providing or supplying any materials
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and equipment to WFI or Subcontractors for the Project, but who do not perform
construction Services at the Site and who are not Subcontractors.
Warranty Services means any curative or remedial Services performed by WFI or
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any Subcontractor or Vendor pursuant to any warranty under this Agreement or any
warranty to be obtained or administered under this Agreement.
Week shall mean five (5) calendar Days as defined herein.
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WFI has the meaning set forth for that term in the preamble to this Agreement.
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WFI Default has the meaning set forth for that term in Section 10.1.
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WFI Permits means all Permits to be obtained in the name of WFI and required for
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the Services and initial operation of the Services until Provisional Acceptance,
but excluding all Metricom Permits.
WFI Warranties means the warranties of WFI pursuant to Article VI.
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WFI Warranty Period has the meaning set forth for that term in Section 6.1.
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WFI Waste Materials has the meaning set forth for that term in Section 2.12.
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1.2 Rules of Interpretation. Defined terms include the plural as well as the
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singular. Any agreement defined or referred to above shall include each
amendment, modification and supplement thereto and waiver thereof as may become
effective from time to time, except where otherwise indicated. Any term defined
by reference to any other agreement shall have such meaning whether or not such
document is in effect. Any reference to an article, section or exhibit shall
refer to an article, section or exhibit of this Agreement unless otherwise
specified. The terms "hereof," "herein," "hereunder" and comparable terms refer
to the entire agreement with respect to which such terms are used and not to any
particular article, section or other subdivision thereof. A reference to any
law includes any amendment or modification to such law made before the relevant
date. A reference to any person includes its permitted successors and permitted
assigns. The words "include," "includes" and "including" are not limiting. If
any provision of this Agreement contemplates that the parties shall negotiate
any matter after the Effective Date, such provision shall be construed to
include an obligation of the parties to negotiate in good faith within the
spirit and intent of this Agreement.
ARTICLE II SCOPE OF SERVICES
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2.1 Description of the Services. In accordance with and subject to the terms
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and conditions of this Agreement, WFI hereby agrees to provide Services which
may include, without limitation: program management, GIS data services, RF
engineering, site acquisition services, zoning and permitting, construction
management services, training, installation and testing for Metricom and
Metricom's customers, business consulting and network maintenance, (the
"Services") as listed in the Statement of Work. The Services will be
compensated on a fixed fee, time and material or hourly basis as agreed by the
Parties.
2.2 Term of Agreement. The term of this Agreement shall be [***] from
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the Effective Date unless otherwise terminated in accordance with this Agreement
(the "Initial Term"). The Initial Term will automatically renew for additional
successive terms of [***] (each, a "Renewal Term") unless either Party
communicates its intention not to renew in writing to the other Party at least
thirty (30) days prior to expiration of the Initial Term or current Renewal
Term. The Parties agree that, for the purposes of the RF Services to be
provided by WFI under the attached Statement of Work, Exhibit I, attached
hereto, the Initial Term of the Agreement shall be [***] from
the Effective Date which shall be September 1, 1999.
2.3 Notice to Proceed. Metricom shall at any time after the Effective Date
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deliver a written Notice to WFI to proceed with all or part of the Services (the
"Notice to Proceed). WFI shall not be authorized by Metricom pursuant to this
Agreement to proceed with the Services until its receipt of the Notice to
Proceed.
2.4 Performance Standards. WFI shall perform the Services, and shall provide
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Metricom with Services, such that:
(a) Components. All Components shall be new and of good quality when
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installed; shall be designed and manufactured, and of a grade, in
accordance with recognized industry standards for such Components
and shall be free from defects in materials and workmanship;
(b) Services. All Services shall be performed in accordance with
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accepted industry standards and in a good and workmanlike manner;
and all Components shall be installed in accordance with
manufacturer's specifications; and the Services will be designed and
built to comply with all Laws and Regulations in effect at as of the
Effective Date.
2.5 Permits. WFI shall obtain at Metricom's expense all WFI Permits. WFI
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shall provide Metricom with engineering and design data, information and support
with respect to the design and performance characteristics of the Services to
the extent reasonably requested or required by Metricom to assist Metricom in
obtaining all
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* CONFIDENTIAL TREATMENT REQUEST(ED)
Metricom Permits. If the requirements of Metricom Permits issued after the
Effective Date effect a change in WFI's Statement of Work, or materially affect
WFI's cost of performance hereunder or its ability to attain the Project
Schedule or to perform by a date certain as required under this Agreement, a
Change Order shall be issued for such purpose.
2.6 Compliance with Schedule. WFI shall commence the Services as soon as
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practicable after receipt of the Notice to Proceed. WFI shall carry on and
complete the Services in accordance with the Project Schedule as amended in
accordance with Article IV.
2.7 Management and Conduct of the Services. WFI shall manage and conduct the
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Services in accordance with the terms of Exhibit I. Without limiting the
generality of the foregoing, WFI shall:
(a) Appointment of Program Director. Promptly following the Effective
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Date, appoint and give Metricom written Notice of the identity and
appointment of a Program Director who shall be authorized to act on
behalf of WFI and with whom Metricom may consult at all reasonable
times, and whose instructions, requests, and decisions will be
binding upon WFI as to all matters pertaining to this Agreement and
the performance of the parties hereunder (provided no amendment or
modification of this Agreement shall be effected except by a formal
written Amendment executed by both parties and no Change shall be
effected except by a Change Order and/or Change Directive). The
Program Director will give written Notice to Metricom designating
Project Managers who have the delegated authority to act on behalf
of WFI and with whom Metricom may consult at all reasonable times,
and whose instructions, requests and decisions will be binding upon
WFI as to all matters pertaining to the Work.
(b) Project Schedule. Provide Metricom with the Project Schedule, which
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shows major milestones for engineering, procurement, construction,
Testing, Substantial Completion, Commissioning, Acceptance and Final
Completion of the Services. The Project Schedule is consistent with
the expected date of delivery of the Notice to Proceed and may be
revised to reflect the actual date of delivery of the Notice to
Proceed.
(c) Consultation and Coordination with Metricom. Initially, WFI will
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consult with Metricom on a [***] basis. Thereafter, WFI will
consult with Metricom on some other regularly scheduled basis as
determined by both parties but in no event less frequently than
[***]. At the time of each consultation, WFI shall deliver to
Metricom a written report of progress achieved subsequent to the
preceding consultation (a "Progress Report"). Such written report
shall, in reasonable detail, consider material activities in the
performance of the Services and indicate milestones reached and the
occurrence of special events or circumstances affecting or related
to the Services, if any, during the period covered by the report;
the status of applications for, or other action taken to obtain,
necessary Permits pursuant to Section 2.5 hereof and the applicable
Statement of Work; leasing status, a Change Directive - Change Order
status log and an evaluation of problems and deficiencies and a
description of any planned corrective action with respect thereto.
WFI shall advise Metricom of any significant changes, developments,
or delays in the Services.
(d) Notice of Tests and Inspections. Provide Metricom with prior
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written Notice of the time and place for the conduct of all
equipment tests and inspections of Components on or before five (5)
Business Days' prior to the related test, or inspection or such
other period as may be agreed upon by WFI and Metricom, provided, in
the case of any retesting shortly following a failed test, such
Notice to Metricom may be verbal and within such reasonable period
prior to such retest. In the case of field tests and inspections of
the Services, WFI and Metricom will agree on the field tests and
inspections as to which Notice will be given by WFI, and with
respect to such field tests and inspections, WFI shall provide
Metricom's Representative with reasonable
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* CONFIDENTIAL TREATMENT REQUEST(ED)
Notice of, and an adequate opportunity to, attend such tests and
inspections as are customary for Site coordination in the
construction industry. WFI shall not be required to delay any
testing if Metricom fails to appear at the approximate time and
place designated by WFI. This section shall not preclude WFI from
retesting any Component or the Services.
(e) Review and Inspection. Subject to the restrictions on inspection
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set forth in Section 2.7 (d), afford Metricom the opportunity to
review and inspect all elements of the Services in a reasonable
manner. WFI agrees to consider in good faith any and all comments
made by Metricom, provided, however, WFI shall determine to what
extent such comments should be considered as respects completion of
the Services. Metricom shall have the right to require repair or
replacement of any Services which is defective or not performed in
accordance with the Statement of Work or the Final Plans and
Specifications as specified in the applicable Statement of Work or
deviates from other requirements of this Agreement, provided WFI
shall have until Provisional Acceptance to complete such repair
or replacement.
(f) Control of the Services. WFI shall be solely responsible for all
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construction means, methods, techniques, sequences, procedures and
safety and security programs in connection with the performance of
the Services.
(g) Site Acquisition Requirements and Milestones. WFI shall perform the
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Site acquisition services as more particularly described in the
applicable Statement of Work. Metricom shall execute all Site Leases
in Metricom's-name. WFI shall present all Site Leases to Metricom
for execution.
2.8 Compliance With Laws and Regulations.
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(a) Performance of Services. WFI shall make every reasonable effort to
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perform the Services and its obligations pursuant to this Agreement,
and shall cause all Subcontractors and Vendors to perform all
elements of the Services to be performed by them, in compliance with
all applicable Laws and Regulations as in force as of the Effective
Date. WFI shall initiate and maintain reasonable safety precautions
and programs to conform with applicable Laws and Regulations to
prevent injury to persons or damage to property on the Site. WFI
shall take reasonable steps to erect and maintain safeguards for the
protection of workers and the public and eliminate or xxxxx safety
hazards created by or otherwise resulting from the performance of
the Services. WFI shall take all precautions reasonably necessary
for the safety and health of, and shall provide all reasonable
protection to prevent damage, injury or loss to: (i) persons working
at the Site employed by WFI or Subcontractors in connection with the
Services, (ii) all materials and equipment to be incorporated into
the Services, whether in storage on or off the Site, under the care,
custody or control of WFI or any Subcontractor, and (iii) other
property at the Site.
(b) Change of Laws and Regulations. If there is a change in any Laws
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and Regulations in existence at the Effective Date or there is an
enactment of any new Laws and Regulations after the Effective Date
or if there is a change in the interpretation of any such Laws and
Regulations ("Change in Laws and Regulations"), and if any such
Change in Law and Regulations effects any change in the Statement of
Work, or materially affect WFI's cost of performance hereunder or
its ability to attain the Project Schedule or to perform by a date
certain as required under this Agreement, a Change Order shall be
issued for such purpose.
(c) Following Acceptance. From and after Acceptance, Metricom assumes
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all responsibility for compliance by the Services with all Laws and
Regulations.
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2.9 Subcontractors. WFI may subcontract any portion of the Services to a
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Subcontractor or Vendor. WFI agrees it is as fully responsible to Metricom for
the acts and omissions of its Subcontractors and Vendors and of persons either
directly or indirectly employed by them as it is for the acts and omissions of
persons directly employed by WFI. Notwithstanding the above, WFI may have
portions of the Services performed by its affiliated entities or their
employees, in which event WFI shall be responsible for such Services and
Metricom will look solely to WFI as if the Services were performed by WFI.
2.10 Metricom as Contracting Party with Subcontractor. If Metricom chooses to
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contract directly with subcontractor for work performed for the Project, then
Metricom shall be solely responsible for the payment of service fees and
expenses of such subcontractors for work performed in connection therewith.
Metricom and WFI hereby acknowledge and agree that Metricom and not WFI shall be
solely responsible for the payment of fees and expenses of subcontractors
contracting directly with Metricom under this Agreement and for all purchase
orders issued to subcontractors for performance of Services hereunder, and that
Metricom shall be billed directly by such subcontractors.
Metricom agrees to include the following paragraph in its agreements with all
subcontractors it directly contracts with and retains to perform, or assist WFI
in performing, Services hereunder:
Manager. Subcontractor acknowledges that Metricom has retained Wireless
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Facilities, Inc., a Delaware corporation and its affiliates, including its
designated employees, contractors and agents, if any ("Manager") to manage
the Services rendered by Subcontractor at the sites. Subcontractor hereby
consents to Metricom's delegation to Manager of any or all of Metricom's
duties and responsibilities under this Agreement, with the exception of
Metricom's payment obligations to Subcontractor. Subcontractor hereby
agrees to work under the direction of Manager in performance of the
Services. Subcontractor shall be responsible to Manager, as Metricom's
designee, for the timely and accurate completion of all Services performed
by Subcontractor under this Agreement. Under no circumstances, however,
shall Subcontractor look to Manager for payment for Services under this
Agreement. Metricom and Subcontractor acknowledge and agree that Metricom
and not Manager shall be responsible for the payment of Subcontractor's
fees under this Agreement and any purchase orders issued hereunder.
2.11 Materials Management Services. At Metricom's request and written
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authorization, WFI shall procure, pay for, receive and store equipment and
building materials for use on the Project ("Materials Management Services").
Metricom shall compensate WFI for Materials Management Services by reimbursing
WFI for the cost of such equipment and building materials, together with an
administrative fee.
2.12 Clean Up. WFI shall at all times keep the Site reasonably free from
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waste materials and rubbish resulting from materials and equipment procured by
WFI or Construction Aids used by WFI in the performance of the Services,
excluding waste described in Section 3.6 and hazardous waste described in clause
(ii) of the definition of Extraordinary Site Conditions ("WFI Waste Materials").
As soon as practicable after the earliest of (i) the Final Completion Date, or
(ii) the date upon which WFI shall no longer have any obligations under this
Agreement, WFI shall remove all of its Construction Aids and remove any WFI
Waste Material from and around the Site.
ARTICLE III METRICOM RESPONSIBILITIES
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In addition to the obligations of Metricom set forth elsewhere in this
Agreement, Metricom shall, at its own expense and at such times as may be
required by WFI for the successful completion of the Services in accordance with
the Project Schedule:
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3.1 Metricom's Representative. Metricom shall notify WFI, in writing, of the
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appointment of Metricom's Representative who shall be authorized to act on
behalf of Metricom and with whom WFI may consult at all reasonable times, and
whose instructions, requests and decisions shall be binding upon Metricom as to
all matters pertaining to this Agreement and the performance of the parties
hereunder, provided no amendment or modification of this Agreement shall be
effected except by an Amendment executed by both parties and no change shall be
effected except by a Change Order or Change Directive. Metricom's
Representative will provide to WFI a written list of designated individuals who
have the delegated authority to execute Change Directives.
3.2 Access. Provide WFI and its Subcontractors rights of access to and use
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of any Site or other location where the Services are to be performed.
3.3 Permits. Except where obtaining such permits and/or licenses and any
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associated documentation are specifically identified as being the responsibility
of WFI as part of the Statement of Work, obtain the Metricom Permits and provide
WFI with such information and assistance as WFI may reasonably request in
obtaining any WFI Permits, and obtain any process and other permits and/or
licenses which are required for the Services, and provide WFI with any drawings
and specifications in connection with any such process or other license
necessary for the completion of the Services and on which WFI shall rely.
3.4 Site Rules. Abide by all reasonable Site safety rules promulgated by
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WFI.
3.5 Taxes. Pay all real property taxes assessed against the Site or the
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Services and any personal property and sales taxes on the Components, provided
Metricom shall have the right to contest any such taxes in good faith by
appropriate proceedings diligently prosecuted and (in the case of any such tax
which WFI may be legally required to pay) for the payment of which Metricom has
posted a bond or provided other security reasonably acceptable to WFI. In the
event WFI is legally required to pay any such taxes (including related interest
and penalties), amounts paid by WFI and the expenses incurred by it in
connection with such payment shall be reimbursed by Metricom to WFI within ten
(10) days of demand.
3.6 Environmental Conditions. Metricom shall, at Metricom's sole expense and
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risk, arrange for handling, storage, transportation, treatment and delivery for
disposal of Contamination and Metricom shall be solely responsible for obtaining
a disposal site for such material. Metricom shall look to the disposal Services
and/or transporter for any responsibility or liability arising from improper
disposal or transportation of such waste. WFI shall not have or exert any
control over Metricom in Metricom's obligations or responsibilities as a
generator in the storage, transportation, treatment or disposal of any
Contamination. Metricom shall complete and execute any required governmental
forms relating to regulated activities, including, but not limited to,
generation, storage, handling, treatment, transportation, or disposal of
Contamination. In the event WFI executes or completes any required governmental
forms relating to regulated activities, including, but not limited to, storage,
generation, treatment, transportation, handling or disposal of hazardous or
toxic materials, WFI shall be and be deemed to have acted as Metricom's agent.
Metricom shall indemnify, release and save WFI harmless from all damages,
liability, expenses or penalties paid by WFI resulting from Contamination. The
term "Contamination" as used in this subsection shall mean any hazardous or
toxic substance, pollutant or contaminate as defined under applicable
Environmental Laws present at the Site, which was not brought to the site by WFI
or any Subcontractor to WFI.
ARTICLE IV WORK ORDERS AND CHANGES IN THE SERVICES
---------------------------------------
4.1 General Change Order Procedure. Metricom shall have the right to make
-------------------------------
changes in the Services, within the general scope thereof, whether such changes
be modifications, alterations or additions. Changes shall include the Project
Cost and any other compensation, the Project Schedule and any other dates for
performance by WFI hereunder, and other affected rights and obligations shall be
adjusted to reflect (1) the addition to, modification of or deletion from the
Services (performed or yet to be performed) or the Services,
Page 10 of 27
(2) Metricom's request for or approval of performance of services in excess of
WFI's standard Services day or Services week or such shorter times as are
provided by applicable collective bargaining agreements or on a holiday
customarily observed by WFI (including an allowance for loss of efficiency due
to overtime or shift Services), (3) the discovery of any subsurface (including
archeological finds) or climatic conditions of an unusual nature, differing
materially from those ordinarily encountered in the jobsite area, (4) a Change
in Law and Regulations by which WFI is required to pay increased or additional
taxes, government-regulated transportation costs, or insurance not required as
of the date of this Agreement, (5) delay or suspension of, or interference with,
the Services by Metricom or by any other person or entity including, but not
limited to, national, state and local governments, (6) modifications to design
criteria or other information made during the performance of the Services and
supplied by any person or entity other than WFI, (7) the consequences of Force
Majeure.
4.2 Estimates and Authorizations.
-----------------------------
(a) Procedure for Estimates. In the event Metricom contemplates making
------------------------
a Change, Metricom shall so advise WFI. Within five (5) Business
Days following receipt of such advice, WFI shall submit to Metricom
a preliminary written estimate relating to the proposed Change,
including (i) any projected change in the cost of the performance of
the Services and any projected modification of the Project Cost
occasioned by such Change, (ii) the effect such Change could be
expected to have on the Project Schedule, or any other schedule or
dates for performance by WFI hereunder, and (iii) the potential
effect of such Change on WFI's ability to comply with any of its
obligations hereunder, including WFI's warranties. If Metricom
elects to proceed with a more detailed examination of such proposed
Change, within such period as shall be agreed upon by the parties,
WFI shall submit to Metricom a detailed estimate relating to the
contemplated Change on a written Change Order. If Metricom elects to
proceed with the proposed Change, Metricom and WFI shall agree upon
a Change Order, and the cost of WFI's detailed estimate shall be
included in such Change Order. If Metricom elects not to proceed
with such proposed Change, Metricom agrees to reimburse WFI for
WFI's reasonable expenses incurred in connection with the
preparation of the estimate of such proposed Change in accordance
with the rates and markups pursuant to Exhibit III, in full and as
part of the next monthly payment in accordance with Article V.
(b) Authorization of Change Order. Within five (5) Business Days of
------------------------------
receipt of WFI's estimate, Metricom shall review the detailed
estimate with WFI for the purpose of determining whether to proceed
with such Change and, if so, for the purpose of agreeing on the
matters set forth therein, including a mutually acceptable change in
the Project Cost, the Project Schedule and any other dates for
performance by WFI hereunder, if any. If the parties reach agreement
on the matters listed in the Change Order submitted by WFI, Metricom
shall cause Metricom's Representative, and WFI shall cause its
Program Director, to execute such form, as amended to reflect the
agreement of the parties. WFI's Program Director shall execute such
form as the originator thereof and Metricom's representative shall
sign "Accepted by"; each shall initial any changes added to the form
as originally presented. WFI shall promptly adjust the Project
Schedule, the Schedule of Values and Milestone Payment Schedule and
any other schedules or dates for performance by WFI hereunder
requiring adjustment to reflect the Change agreed upon. Except as
otherwise provided herein, in no event shall WFI undertake a Change
in the Services until it has received a Change Order or Change
Directive executed by the authority of the Metricom representative.
(c) Change Directive. In the event Metricom's Representative directs
-----------------
WFI to perform Services prior to agreement to, and execution of a
Change Order, Metricom Representative will execute a Change
Directive authorizing WFI to perform the changed Services on a
hourly rate in accordance with Exhibit V. The Services shall be
performed on the hourly rate basis until an
Page 11 of 27
estimate of the impact of the Change can be prepared for Metricom
review, agreement and execution in accordance with (c) above. The
Change Directive will state the general scope of the changed
Services to be performed and rough order of magnitude (ROM) estimate
of the cost thereof.
4.3 Suspension. Metricom may notify WFI in writing to suspend its Services
-----------
on that portion of the Services affected by a contemplated Change (whether or
not such Change will require a modification to the Statement of Work) pending
Metricom's decision on such Change. There shall be an equitable adjustment of
the Project Cost and dates set forth in the Project Schedule and other dates for
performance by WFI hereunder on account of such suspension.
4.4 Force Majeure Caused Delay. In the event of a Force Majeure event or
---------------------------
other event described in Section 11.1, in accordance with Section 11.3, Metricom
shall execute and deliver to WFI a Change Order reflecting any adjustments to
the Project Cost, the Project Schedule or any other dates for performance
hereunder, or any other obligations under this Agreement.
4.5 WFI Initiated Changes. WFI shall have the right to initiate Change
----------------------
Order's and/or Change Directives independent of requests by Metricom, with
estimates to be prepared in accordance with Section 4.2. The WFI initiated
Change Order shall be handled as if initiated by Metrico m.
4.6 Disputes. If either party disputes the existence, extent, validity or
---------
affect of a Change, then either party may notify the other party that it desires
to meet and resolve the dispute. If the dispute cannot be resolved to the
mutual satisfaction of the parties within five (5) Business Days, then either
party can demand binding dispute resolution in accordance with Section XIII.
ARTICLE V COMPENSATION & PAYMENT
----------------------
5.1 Compensation. In consideration of WFI's performance of the Services,
-------------
Metricom shall pay WFI for all Services assigned by and rendered to Metricom
pursuant to this Agreement. WFI will be reimbursed only for expenses which are
expressly provided for in Exhibit III or which have been approved in advance in
writing by Metricom, provided WFI has furnished such documentation for
authorized expenses a Metricom may reasonably request. All work performed by
WFI at Metricom's request in addition to the Services specifically set forth in
this Agreement shall be compensated at the hourly rates agreed upon by the
Parties and set forth in Exhibit III.
5.2 Milestone Payment Schedule. The Milestone Payment Schedule contained in
---------------------------
Exhibit III establishes that portion of the compensation allocated to the
various milestones set forth in the Milestone Payment Schedule, identifies
portions of the Services for purposes of determining WFI's entitlement to
Milestone Payments, and to the best of WFI's knowledge and judgment is a
reasonable representation of milestones achieved during the calendar month. Upon
attainment of each milestone, WFI shall submit an invoice to Metricom in
accordance with Section 5.3.
5.3 Invoices. On or before the tenth (10th) Day of each month during the
---------
performance of the Services (except that in the case of the initial payment
under the Milestone Payment Schedule, such date shall be the expected date of
issuance of the Notice to Proceed), WFI shall submit to Metricom an invoice with
respect to (i) milestones achieved during the month (ii) a monthly Progress
Report with respect to such milestones (or reference thereto if previously
delivered to Metricom), and (iii) all other documentation required to be
submitted by WFI pursuant to this Article V. WFI shall make available such
documentation and materials as Metricom may reasonably require to substantiate
WFI's right to payment of such Invoice in accordance with this Agreement,
provided, however, WFI shall not be required to provide documentation relating
to its commercial terms, including but not limited to the make-up of WFI's
Project Cost, standard rates, fixed fees or amounts expressed as a percentage of
other costs.
Page 12 of 27
5.4 Taxes. WFI shall pay or cause to be paid when due (a) all taxes,
------
governmental fees, assessments, charges or levies imposed in connection with the
Services (other than fees and charges for Metricom Permits and for sales and
property taxes on the Components, or revenues from operation of the Services),
(b) all import duties, (c) all taxes measured by wages earned by employees of
WFI, any Subcontractor or any Vendor, and payroll, withholding, social security,
workers' compensation and other similar employment taxes, and (d) all taxes
calculated on the basis of WFI's receipts or income (collectively, "Taxes");
provided WFI shall have the right to contest any such Taxes in good faith by
appropriate proceedings diligently prosecuted and, in the case of any Taxes
which Metricom may be legally required to pay or which may result in lien on the
Site, the Services or the Services for the payment of which WFI has posted a
bond or provided other security reasonably acceptable to Metricom.
5.5 Payments. Except as set forth in this subsection, undisputed invoices or
---------
undisputed portions thereof are payable in full within thirty (30) days upon
receipt of invoice. Metricom shall review each such Invoice's and may make
reasonably appropriate exceptions by providing WFI with written Notice thereof
within ten (10) Days after receipt of such Invoice. Any amount of a Invoice
which is disputed by Metricom as provided in this Article V shall be resolved in
accordance with Section 13.1 and, once resolved, shall be paid within five (5)
Business Days of the date of resolution.
5.6 Final Invoice. Upon Final Completion, WFI shall submit a final Invoice
--------------
("Final Invoice"), which shall set forth all amounts due and remaining unpaid to
it pursuant to this Agreement in respect of the Project Cost.
5.7 No Obligation of Metricom to Subcontractors. Nothing contained in this
--------------------------------------------
Agreement shall (i) create or constitute a contractual relationship between any
Vendor or Subcontractor and Metricom, or (ii) create any obligation on the part
of Metricom to any Vendor or Subcontractor. Metricom shall have no obligation
to pay or to see to the payment of any moneys to any Vendor or Subcontractor,
except as may otherwise be required by law.
5.8 No Acceptance By Payment. No partial payment made hereunder shall be
-------------------------
construed to be acceptance or approval of that part of the Services to which
such partial payment relates or to relieve WFI of any of its obligations
hereunder with respect thereto.
5.9 [***] . WFI [***]
--------------------
ARTICLE VI WARRANTIES
----------
6.1 General Warranty. WFI warrants for the period of time set forth on the
-----------------
applicable Statement of Work (the "WFI Warranty Period") that:
(a) Components. All Components shall be (i) new and of good quality
-----------
when installed, (ii) designed and manufactured, and of a grade, in
accordance with recognized industry standards for such Components,
(iii) free from defects in materials and workmanship and (iv)
installed in accordance with manufacturer's specifications; and
(b) Services. All Services shall be performed (i) in accordance with
---------
accepted industry practices, (ii) in accordance with applicable Laws
and Regulations in effect at or prior to the
Page 13 of 27
-------------
* CONFIDENTIAL TREATMENT REQUEST(ED)
commencement of the Agreement Effective Date, (iii) in a good and
workmanlike manner, and (iv) in accordance with the Statement of
Work.
6.2 Vendor Warranties. WFI shall obtain from all Vendors from which WFI
------------------
procures materials and equipment including Components warranties with respect to
such equipment as are reasonably available. Such warranties shall obligate the
respective Vendors to repair or replace nonconforming or defective materials and
equipment. All such warranties shall be assigned to Metricom upon Acceptance.
During the WFI Warranty Period, WFI shall assume all responsibility at its
expense for administering and enforcing such Vendor warranties, and Metricom may
rely upon and deal only with WFI with respect to such warranties. WFI's
liability with respect to such warranties shall be limited to procuring
available warranties from such Vendors and rendering all reasonable assistance
to Metricom (short of litigation) for the purpose of enforcing the same.
6.3 Correction of Nonconforming or Defective Services. If Metricom shall
--------------------------------------------------
notify WFI in writing during the WFI Warranty Period that any part of the
Services does not meet the standards specified in Section 6.1 (such Notice to be
provided with reasonable promptness after acquiring knowledge of such
nonconformity or defect and, in any event, prior to ten (10) Business Days after
Metricom becomes aware of the nonconformity or defect), then WFI shall, at its
own cost, promptly reperform, repair or replace, at its option, such
nonconforming or defective part of the Services, within its original Statement
of Work. If WFI does not promptly commence to reperform or remove and replace
any nonconforming or defective Services or any part thereof, Metricom shall give
WFI at least ten (10) Business Days written Notice prior to proceeding with any
correction of nonconforming or defective Services that Metricom reasonably
believes involves a warranty claim, and if WFI fails to respond to such Notice,
Metricom may proceed with the correction of such nonconforming or defective
Services and all reasonable expenses of reperforming and removal, restoration
shall be charged to WFI.
6.4 Wear and Tear. WFI shall, in no event, warrant against and shall have no
--------------
liability for the effects of ordinary wear and tear or erosion or corrosion, or
failure of Services due to faulty operations or maintenance by Metricom or its
representatives, agents or contractors, or conditions of service more severe
than specified in the Statement of Work or other technical documents included
with this Agreement. Further, WFI shall have no warranty obligation or
liability for defects in the Services unless Metricom demonstrates the warranty
claim is not attributable to WFI's reliance upon or use of data, design
criteria, drawings, specifications or other information furnished by Metricom
and Metricom provided WFI an opportunity to promptly make such diagnostic tests
and perform such remedial services as WFI deemed appropriate in connection with
any warranty claim made by Metricom. In the event such diagnostic services do
not reveal any warranted defect in the Services, the costs of such tests,
inspections or other diagnostic services, plus a reasonable negotiated fee,
shall be paid by Metricom.
6.5 Limitation of Warranty. The obligations contained in this Article VI
-----------------------
govern and supersede any other terms in this Agreement which address warranties
or the quality of the Services or the Services and are WFI's sole warranty and
guarantee obligations and Metricom's exclusive remedies with respect to defects
in the Services and the Services after Provisional Acceptance, provided that
portion of the Services to be completed after Substantial Completion (other than
warranty services) shall be performed in accordance with Article II until such
Services is completed in accordance with the Agreement. All of the warranties
and other obligations of WFI under this Article VI relate to the WFI Warranty
Period and WFI shall not be obligated to correct or to pay for the cost of
correcting, defects or deficiencies which become apparent after the expiration
of the WFI Warranty Period. The provisions of this Article VI shall govern,
modify and supersede any other terms of this Agreement relating to the quality
of the Services and except as provided in this Article VI, there are no other
warranties, express or implied, with respect to WFI's performance under this
Agreement.
ARTICLE VII INDEMNIFICATION
---------------
Page 14 of 27
7.1 WFI's General Indemnity. WFI shall defend, indemnify and hold Metricom
------------------------
and its respective affiliates, successors, assigns, employees, agents, officers
and directors (such indemnified persons or entities collectively, the
"Indemnified Persons") harmless from and against all damages, losses, costs and
expenses (including, but not limited to, court costs and fees and expenses of
counsel) (collectively, "Claims") resulting from the death or bodily injury to
any person, or damage to any property to the extent caused by the sole negligent
act, willful misconduct, tortious or otherwise unlawful act, error or omission
by WFI or any Subcontractor to WFI.
7.2 Metricom's General Indemnity. Metricom shall defend, indemnify and hold
-----------------------------
WFI and its affiliates, and each of their respective successors, assigns,
employees, agents, officers and directors (collectively, the "WFI Indemnified
Persons") harmless from and against all damages, losses, costs and expenses
(including, but not limited to, court costs and fees and expenses of counsel)
(collectively, "Claims") resulting from the death or bodily injury to any
person, or damage to any property of Site to the extent caused by the sole
negligent act, willful misconduct, tortious or otherwise unlawful act, error or
omission by Metricom or contractors under Metricom's direct supervision or
control.
7.3 Protection of the Services. WFI shall be responsible for and obligated
---------------------------
to replace, repair or reconstruct, and to furnish any Services furnished by WFI
under this Agreement which are lost, damaged, or destroyed prior to the transfer
of care, custody, and control of the Services or the affected portion thereof to
Metricom (the "Risk of Loss Date"), provided, WFI shall not be obligated to
replace, repair or reconstruct Services with respect to which proceeds of the
insurance policy maintained pursuant to Section 8.1(d) have been paid for damage
to the Services unless proceeds are available to finance that replacement,
repair or reconstruction and Metricom shall permit such proceeds to be used to
finance such replacement, repair or reconstruction. Metricom assumes all
responsibility for such loss, damage or destruction following the Risk of Loss
Date and WFI is released from all such liability.
7.4 Metricom's Property. Metricom assumes responsibility and risk for all
--------------------
loss of or damage to property owned by or in the custody of Metricom, however
such loss or damage shall occur, and agrees to maintain property damage
insurance fully covering said property from such risk naming WFI as additional
insured and does hereby and shall cause its insurers to waive rights of
subrogation against WFI and its Vendors and Subcontractors under any insurance
which Metricom may carry.
7.5 Compliance with Laws and Regulations. WFI shall indemnify and hold the
-------------------------------------
Indemnified Persons harmless from and against all Claims caused by any violation
of, any Laws and Regulations by WFI or any Subcontractor.
7.6 Notice and Defense. The indemnified party shall notify the indemnifying
-------------------
party in writing within ten (10) Days after the indemnified party becomes aware
of any Claim for which the indemnified party seeks indemnity under this Article
VII. The indemnifying party shall have charge and direction of the defense of
any such Claim and the indemnified party shall render all reasonable assistance,
at the indemnifying party's expense that may be required by WFI and its counsel
in the defense of such Claim.
7.7 Limitations. WFI shall have no obligation to Metricom with respect to
------------
any damage or loss to property referred to above caused by the perils of war,
insurrection, revolution, nuclear reaction, or other like perils as may be
excluded under the scope and limits of the insurance coverage provided pursuant
to Section 8.1 (d) and WFI's liability with respect to loss, damage or injury
shall not exceed the scope and limits of the insurance coverage provided
pursuant to Article VIII. Nothing in this Article VII shall be construed to
require WFI to indemnify any person to the extent harm results from such
person's own negligence, willful misconduct or other tortious act, error or
omission.
ARTICLE VIII INSURANCE
---------
Page 15 of 27
8.1 WFI's Commitment. Commencing with the Notice to Proceed with the
-----------------
Services hereunder, and continuing until the earlier of Final Completion or
termination of this Agreement (except with regard to "Builder's Risk" Course of
Construction Insurance which shall commence and continue for the period
specified in paragraph (d) below), WFI shall maintain, at its expense, insurance
policies that are appropriate in scope and amount to properly cover WFI's
obligations under the Agreements as follows:
(a) Employees. Workers' compensation and/or all other social insurance
----------
in accordance with the statutory requirements of the state,
province, or country having jurisdiction over WFI's employees who
are engaged in the Services, with employer's liability of one
million dollars ($1,000,000) each accident;
(b) Public Liability. Commercial general liability insurance in a
-----------------
combined single limit of two million dollars ($2,000,000) each
occurrence for bodily injury to or death of persons and/or loss of
or damage to property of parties other than Metricom and excluding
the Services and the Services, which policy shall contain
contractual liability coverage;
(c) Automobile. Automobile liability insurance in a combined single
-----------
limit of one million dollars ($1,000,000) each occurrence for bodily
injury to or death of persons and/or loss of or damage to property
of parties other than Metricom and excluding the Services and the
Services, arising from the use of motor vehicles, and shall cover
operation on or off the Site of all motor vehicles licensed for
highway use, whether they are owned or non-owned;
(d) The Services. "Builder's Risk" Course of Construction insurance
-------------
protecting the respective interests of Metricom, WFI and
Subcontractors covering physical loss or damage during course of
construction and any materials and equipment while in transit (other
than in the course of ocean marine or air transit movement, which is
to be provided for pursuant to paragraph (e) below), while at the
Site, awaiting and during erection, and until the Risk of Loss Date.
This insurance shall be maintained to cover the replacement value of
the Services at risk, to the extent available. This insurance shall
not cover losses caused by the perils of war or nuclear reaction as
defined in the policy of insurance nor shall it cover loss of use,
business interruption, or loss of product. Metricom shall be
included as an additional insured. A deductible of twenty-five
thousand dollars ($25,000) shall apply to each and every covered
loss, except earthquake, flood, windstorm, hot testing, and other
deductibles as specified in the contract of insurance;
(d) Transit. Ocean Marine Cargo Insurance (if appropriate) covering any
--------
and all materials and equipment which may be in transit to the Site
by wet marine bottoms, or by air transportation, and/or by
connecting conveyances. Such insurance shall be maintained to cover
limits at risk.
8.2 Certificates. The foregoing insurance shall be maintained with carriers
-------------
reasonably satisfactory to Metricom, and the terms of coverage shall be as
evidenced by certificates to be furnished Metricom. Such certificates shall
provide that thirty (30) days' written Notice shall be given to Metricom by
insurer prior to cancellation of any policy.
8.3 Waiver of Subrogation. WFI shall require its insurance carriers, with
----------------------
respect to all insurance policies to be carried with respect to the Project to
waive all rights of subrogation against Metricom. WFI agrees to exercise its
best efforts to obtain from its Subcontractors waivers of subrogation.
ARTICLE IX TRANSFER AND ACCEPTANCE
-----------------------
9.1 Substantial Completion. When WFI deems that the Services, a Site or any
-----------------------
other portion thereof has reached Substantial Completion and is ready for
initial inspection, it shall so advise Metricom.
Page 16 of 27
Within [***] of such advice, Metricom shall provide written notice (i) that
Substantial Completion has occurred; or (ii) why the Services, a Site, or any
portion thereof has not achieved Substantial Completion. If Metricom fails to
take any action within the [***], the issue shall be resolved in accordance with
Section 13.1.
9.2 Care, Custody and Control. The care, custody and control of the Services
--------------------------
shall pass from WFI to Metricom on written agreement that the Services, a Site
or any portion thereof has reached Substantial Completion, but subject to the
warranty and other continuing obligations of WFI hereunder, including WFI's
obligation to complete all Punch List Items outstanding as of Substantial
Completion. In any event, the care, custody, and control of the Services or
portion thereof shall pass to Metricom no later than the time when Metricom
either starts Beneficial Use of or takes physical possession thereof. From and
after the date of the transfer of the care, custody, and control of the Services
or portion thereof, (a) Metricom shall assume all risks of physical loss or
damage thereto and all responsibility for compliance by the Services or portion
thereof with applicable safety and Environmental Laws and all other Laws and
Regulations and (b) Metricom shall, and does hereby, release WFI from loss or
damage to the Services, except as provided for otherwise in the Agreement, which
may thereafter occur.
9.3 Creation of Punch List.
-----------------------
(a) As soon as WFI believes the state of the Services warrants such
action, but in any event before commencing the Provisional
Acceptance Tests, WFI will give a written Notice to Metricom that
WFI is prepared to conduct a joint inspection of the Services, a
Site or any portion of the Services.
(b) Metricom and WFI will cooperate with each other in scheduling and
conducting a joint inspection of the Services, a Site or any portion
of the Services as soon as reasonably possible after Metricom's
receipt of WFI's Notice, but in any event within five (5) Days of
its receipt. At Metricom's option, Punch List Items may be prepared
and joint inspections performed on a components-by-components or
systems-by-systems basis.
(c) Within five (5) Days of completion of any such joint inspection, but
in any event within ten (10) Days of WFI's Notice to Metricom of
WFI's readiness for a joint inspection of the Services, a Site or
systems or components thereof, Metricom shall prepare and deliver to
WFI a written description of all items of the Services (other than
the Provisional Acceptance Tests or additional Services revealed by
such tests or necessary to achieve Successful Completion of such
tests) which Metricom, in its best good faith judgment, believes
have not been completed or require revision or correction to cause
them to conform with the requirements of this Agreement.
(d) Promptly following Metricom's delivery of its proposed list of Punch
List Items to WFI, WFI shall commence and thereafter diligently
pursue the completion of all items of the Services which WFI, in its
best good faith judgment, believes have not been completed or
require revision or correction to cause them to conform with the
requirements of this Agreement.
(e) It is specifically understood and agreed that WFI's acceptance of or
agreement on a list of Punch List Items shall not alter or diminish
either WFI's obligation to complete all of the Services, or
Metricom's right to require its completion, in accordance with this
Agreement.
9.4 Final Completion. The final completion of the Services ("Final
-----------------
Completion") shall occur on the last to occur of (a) the completion in its
entirety of all physical construction of the Services in accordance with this
Agreement, including, without limitation, the completion of such finish items as
final painting and insulation and completion of Punch List Items, (b) the
completion of all other Services in accordance with this Agreement, and (c) the
Successful Completion of the Provisional Acceptance Tests.
Page 17 of 27
* Confidential Treatment Requested
ARTICLE X DEFAULT, TERMINATION, CANCELLATION AND SUSPENSION
-------------------------------------------------
10.1 Events of Default. A party shall be in default of its obligations
------------------
pursuant to this Agreement (a "WFI Default" in the case of WFI's obligations or
a "Metricom Default" in the case of Metricom's obligations) upon the occurrence
of any one or more of the following circumstances, unless, except as to Section
10.1 (a) below, the party's act or failure giving rise to such circumstance is
excused as being the result of an event described in Article XII (Force
Majeure).
(a) Nonpayment. A party fails to pay or causes to be paid any amount
-----------
that has become due and payable by a party to the other party
hereunder within five (5) Days after Notice of such failure;
(b) Breach of Representations or Covenant. Any material representation
--------------------------------------
made by a party pursuant to this Agreement that shall prove to have
been incorrect as of the date such representation was made or deemed
to have been made; or if a party fails duly to observe or perform
any of the other material covenants and agreements contained in this
Agreement and such failure continues for [***] after Notice to
specifying such failure, except that such failure shall not be
deemed a default if, promptly after Notice, the defaulting party
commences in good faith and thereafter diligently prosecutes
measures which may reasonably be expected to effect a cure of such
misrepresentation in such a way and by such time as shall avoid any
adverse effect on the non-defaulting party's rights under this
Agreement, or that party's ability to achieve its obligations under
this Agreement. The cure period for breach of Sections 12.3 and 16.6
shall be [***];
(c) Insolvency. A party becomes insolvent, or fails generally to pay
-----------
its debts as they become due, or admits in writing its inability to
pay its debts as they become due, or makes a general assignment for
the benefit of creditors;
(d) Voluntary Bankruptcy. A party commences any case, proceeding or
---------------------
other action seeking reorganization, arrangement, adjustment,
liquidation, dissolution or composition of itself or its debts or
assets, or adopts an arrangement with creditors, under any
bankruptcy, moratorium, rearrangement, insolvency, reorganization or
similar law of the United States or any state thereof for the relief
of creditors or affecting the rights or remedies of creditors
generally (collectively, "Debtor Relief Laws");
(e) Involuntary Bankruptcy. There shall be instituted against a party
-----------------------
under any Debtor Relief Laws any case, proceeding or action seeking
reorganization, arrangement, adjustment, liquidation, dissolution or
composition of that party or its debts or assets, which shall be
continuing and shall not have been terminated, stayed or dismissed
within thirty (30) Days after commencement, or a trustee, receiver,
custodian or other official is appointed for or to take possession
of all or any part of the property of that party, which action
remains undismissed for a period of thirty (30) Days;
(f) Nonperformance. A party disregards any applicable Laws and
---------------
Regulations, the disregard of which may have a material adverse
effect on the non-defaulting party's rights under this Agreement and
such disregard continues for five (5) Business Days after written
Notice from the non-defaulting party; or in the case of WFI, after
written Notice of default from Metricom, WFI fails to provide
Metricom with a cure plan and fails to commence a cure of said
default in accordance with the cure plan within five (5) Business
Days.
Page 18 of 27
-------------
* CONFIDENTIAL TREATMENT REQUEST(ED)
(g) Abandonment. A party abandons the Project (except due to a
------------
suspension of the Services permitted pursuant to this Agreement),
which may have a material adverse effect on the non-defaulting
party's rights under this Agreement, and the defaulting party fails
to recommence the Project within five (5) Business Days after
written Notice from the non-defaulting party; or a party repudiates
this Agreement.
10.2 Metricom Remedies for WFI Default. In the event of a WFI Default,
----------------------------------
Metricom shall have any or all of the following rights and remedies, and WFI
shall have the following obligations:
(a) Termination. Metricom, without prejudice to any of its other rights
------------
or remedies under this Agreement, may terminate this Agreement
immediately by delivery of a Notice of termination to WFI;
(b) Withdrawal of WFI. If requested by Metricom, WFI shall withdraw
------------------
from the Project, assign to Metricom such of WFI's subcontracts and
Vendor contracts as Metricom may request, and remove such
Construction Aids, and materials and equipment used by and any
debris or waste materials generated by WFI in the performance of the
Services as Metricom may direct, and Metricom may take possession of
any and all designs, Construction Aids, and materials and equipment,
purchase orders, inquiries, schedules, drawings, and facilities of
WFI that Metricom deems necessary to complete of the Services;
(c) Equitable Remedies. Metricom may seek equitable relief to cause WFI
-------------------
to take action, or to refrain from taking action pursuant to this
Agreement, or to make restitution of amounts improperly received
under this Agreement: or
(d) Damages. Metricom may seek damages equal to the reasonable costs in
--------
excess of the Project Cost incurred by Metricom or any party acting
in Metricom's behalf in completing the Services or having the
Services completed. Metricom shall be entitled to withhold further
payments to WFI until Metricom determines that WFI is entitled under
this Agreement to further payments. Upon completion of the Services
by Metricom or third parties, the total cost of the Services shall
be determined, and Metricom shall notify WFI in writing of the
amount, if any, that WFI shall pay Metricom.
10.3 WFI Remedies for Metricom Default. In the event of an Metricom Default,
----------------------------------
WFI shall have any or all of the following rights and remedies, in addition to
those rights and remedies that may otherwise be available to WFI under this
Agreement:
(a) Suspension. WFI may suspend performance of the Services upon no
-----------
less than ten (10) Business Days' Notice to Metricom. In that event,
WFI shall be paid for all costs incurred and arising from or
connected with the suspension, including costs of demobilization,
stand-down time and remobilization.
(b) Termination. WFI may terminate this Agreement upon no less than ten
------------
(10) Business Days' Notice to Metricom;
(c) Equitable Remedies. WFI may seek equitable relief to cause Metricom
-------------------
to take action, or to refrain from taking action pursuant to this
Agreement; or
(d) Damages. WFI may seek damages for an Metricom Default for all costs
--------
incurred by WFI arising from the Metricom Default, including
demobilization and cancellation costs, including any charges by
Vendors and Subcontractors. Notwithstanding any provision in this
Agreement to the contrary or any certificates or representations
made by WFI to the contrary, the parties
Page 19 of 27
agree in the event of an Metricom Default, WFI reserves its rights
under applicable law to secure any damages suffered by WFI, whether
arising from Metricom's failure to pay amount due under this
Agreement or otherwise, as allowed pursuant to any statutory or
equitable right permitting a Mechanics' or Materialmen's Lien.
10.4 Termination for Convenience. Metricom may, in its sole discretion,
----------------------------
terminate all or any part of the Services without cause at any time by giving
[***] advance written Notice of termination to WFI specifying the portion of the
Services to be terminated and the effective date of such termination.
Immediately upon the effective date of such termination, WFI shall stop
performance of the terminated Services and immediately order and commence
demobilization with regard to the terminated Services. WFI shall continue to
proceed with any part of the Services (if any) not terminated. Upon such
termination, Metricom and WFI shall have the following rights, obligations and
duties:
(a) In case of partial termination of the Services, Metricom and WFI
shall cooperate and negotiate in good faith to agree upon a Change
effecting appropriate adjustments in the Project Cost, Milestone
Payment Schedule and other relevant matters based upon such partial
termination. In that regard, WFI shall be compensated for any
additional costs arising from a partial termination, including
Vendor or Subcontractor cancellation charges. Any such Change shall
be incorporated in a Change Order or amendment of this Agreement;
(b) Upon any termination pursuant to this Article X, Metricom may, at
its option, elect to (a) assume the responsibility for and take
title to and possession of any and all Services that is terminated
at the Site, excluding Construction Aids, and/or (b) succeed to the
interests of WFI in any or all purchase orders, contracts and
subcontracts entered into by WFI with respect to such Services
provided, (i) any such assignment is subject to the concurrent
payment by Metricom of amounts due WFI under this Section 10.5, (ii)
such assignment is acceptable to the respective Subcontractor or
Vendor that is a party to such purchase order, contracts or
subcontracts and (iii) WFI is released by Metricom and such
Subcontractors and Vendors in a form acceptable to WFI from all
further obligations and liability thereunder.
10.5 Suspension by Metricom. Metricom may, at any time after issuance of the
-----------------------
Notice to Proceed and for any reason, suspend performance of the Services or any
portion thereof by giving [***] written Notice to WFI, unless WFI agrees
in writing to a shorter Notice period. Such suspension shall continue for the
period (the "Suspension Period") specified in the suspension Notice. Should the
Services be so suspended, WFI shall be paid for all costs incurred in accordance
with the provision of Article V for Services performed to the date of suspension
and through demobilization and remobilization, including any suspension or
cancellation charges by vendors and Subcontractors.
(a) Resumption of Services. In the case of any suspension under this
-----------------------
Article X, the dates set forth in this Agreement and in the Project
Schedule and other dates for performance by WFI hereunder shall be
equitably extended for the Suspension Period, any WFI rights or
obligations under the Agreement affected by the suspension shall be
equitably adjusted and the Project Cost shall be increased to
reflect substantiated increases in the cost of performance of the
Services and any additional costs incurred by WFI arising from the
suspension.
(b) Termination. If, at the end of the specified Suspension Period,
------------
Metricom has not required a resumption of the Services or has not
notified WFI of any extension of the Suspension Period, WFI may
elect to treat the suspension as a Termination for Convenience
effective as of the commencement date of the Suspension Period, and
Metricom shall pay WFI for (i) the Services performed, (ii) those
other costs attributable to the suspension and (iii) any other
amounts payable pursuant to Article X.
Page 20 of 27
-------------
* CONFIDENTIAL TREATMENT REQUEST(ED)
ARTICLE XI FORCE MAJEURE
-------------
11.1 Defined. "Force Majeure" as used in this Agreement means events beyond
--------
the reasonable control of Metricom or WFI, as the case may be (an "Affected
Party"), including, but not limited to, the following events: acts of God, fire,
flood, earthquake, public disorder, war (declared or undeclared), sabotage,
governmental acts and decrees, inability to obtain or delays in obtaining
Permits, any change in Laws and Regulations, riots, labor strikes, boycotts,
work slowdowns and all other labor difficulties (whether direct or indirect),
subsurface conditions, breakdown or damage to necessary facilities or
transportation delays, hostilities or acts of terrorism, rebellion or sabotage
or damage resulting therefrom, fires, floods, explosions and accidents;
provided, however, no such event shall constitute Force Majeure in the event
such event is caused solely by the negligent or intentional acts, errors or
omissions of, or material failure to comply with any Law or Regulation by, an
Affected Party or its related and affiliated entities, or a WFI Default or an
Metricom Default, as the case may be.
(a) The more general provisions of this Section 12.1 to the contrary
notwithstanding, it is specifically agreed the following specific
events are to be treated as being, or not being, Force Majeure
events with respect to WFI, as stipulated below, for all purposes of
this Agreement:
[***]
11.2 Notice of Event. No Affected Party shall be in default under this
----------------
Agreement for failure to perform any obligation or for delay in the performance
of any obligation as a result of a Force Majeure event, with the exception of
any obligation to make payment of money due under this Agreement, provided the
Affected Party shall give written Notice to the other party of the Force Majeure
event promptly upon the Affected Party's receipt of knowledge of such event. In
the case of WFI, receipt of knowledge of such event shall occur only when such
event is brought to the attention of WFI's Representative (or any replacement of
such person or any designee of such person in such person's absence). In the
case of Metricom, receipt of knowledge of such event shall occur only when such
event is brought to the attention of Metricom's Representative (or any
replacement of such person or any designee of such person in such person's
absence). The Affected Party shall provide the other party with (i) periodic
supplemental written notices during the period of the Force Majeure regarding
any change, development, progress or other relevant information concerning the
Force Majeure event, and (ii) written Notice promptly of the termination of the
Force Majeure event. The Affected Party shall use reasonable efforts to avoid
and to minimize the effect of a Force Majeure event;
11.3 [***]. In the event [***]
------
ARTICLE XII INTELLECTUAL PROPERTY
---------------------
12.1 Title to Plans and Specifications. Drawings and specifications prepared
----------------------------------
by WFI pursuant to this Agreement, which Metricom may require WFI to supply in
accordance with the Agreement shall become the property of Metricom after
transfer of title thereto and Metricom agrees to use the information contained
therein
Page 21 of 27
solely for the purpose of facilitating or completing construction, maintenance,
operation, modification and repair of the Facilities and any duplication thereof
shall be solely for Metricom's internal use, in whole or in part, and agrees not
to disclose the same or information contained therein to others for any other
purpose, without the written consent of WFI. In the event Metricom uses such
information for any other purpose, Metricom agrees to release, defend, indemnify
and hold WFI harmless from and against any liability arising out of claims or
suits asserted against WFI. Nothing herein shall be construed as limiting WFI's
ownership of all rights to use its basic know-how, experience and skills,
whether or not acquired during performance of the Services or to perform any
engineering design or other services for any other party.
12.2 Infringement. WFI shall defend, indemnify and hold Metricom and its
-------------
respective affiliates, successors, assigns, employees, agents, officers and
directors harmless from and against all damages, losses, costs and expenses
(including, but not limited to, court costs and fees and expenses of counsel)
resulting from any action brought against Metricom to the extent based on a
claim that the drawings and specifications prepared by WFI pursuant to the
Agreement infringes any patent or copyright if Metricom promptly notifies WFI of
the claim, furnishes WFI a copy of each written correspondence relating to the
claim and gives WFI authority, information and assistance (at WFI's expense)
necessary to defend or settle the claim.
12.3 Non-Disclosure Agreements. Any written agreements between WFI and
--------------------------
Metricom entered into prior to the effective date hereof relating to secrecy or
confidentiality of information exchanged between WFI and Metricom shall be
deemed incorporated herein by reference as if fully set forth in this Agreement.
The parties agree not to disclose the terms contained in this Agreement except
to the extent necessary to enable the parties to fulfill their obligations under
this Agreement.
12.4 Patents. WFI shall include, as a term or condition of each subcontract
--------
and purchase order employed by it in the performance of the Services, a patent
indemnification provision extending from the Vendor under such purchase order to
Metricom and WFI, and to render such assistance to Metricom as may be reasonably
required on a reimbursable cost basis to enforce the terms of such
indemnification by Vendors.
ARTICLE XIII DISPUTE RESOLUTION
------------------
13.1 General Disputes. In the event of a dispute between the parties arising
-----------------
under or relating to this Agreement, excluding any disputes related to Sections
12.3 and 16.6, which cannot be amicably resolved within five (5) Business Days
by the individuals appointed pursuant to Section 2.7 and Section 3.1 hereof,
such dispute shall be referred to a representative of senior management of the
parties hereto for resolution. If senior management of the parties cannot
amicably resolve the dispute within ten (10) Business Days the dispute shall be
submitted to arbitration pursuant to Section 13.2.
13.2 Disputes Involving Changes. In the event a dispute arises pursuant to
---------------------------
the provisions of Article IV, which is unresolved pursuant to Section 13.1, such
dispute shall be decided by binding arbitration with the firm of Judicial
Arbitration & Mediation Services, Inc. - Endispute ("JAMS"), acting as the sole
arbitrator in accordance with the current version of the Streamlined Arbitration
Rules and Procedures of JAMS (the "Rules"). The award is final and binding, and
no appeal may be taken on the grounds of error in the application of the law or
finding of fact. Judgment may be entered on the award, and the award may be
judicially enforced. Any other claims, disputes and other matters in question
arising out of or relating to this Agreement or the breach thereof may, if the
parties mutually agree, be decided by mediation or arbitration by JAMS.
13.3 Waiver of Jury Trial. To the full extent permitted by law, Metricom and
---------------------
WFI hereby knowingly, voluntarily and intentionally waive any rights they may
have to a trial by jury in respect to any litigation based hereon, or arising
out of, under, or in connection with, this Agreement, or any course of conduct,
course of dealing, statements (whether oral or written) or actions of Metricom
or WFI. The parties acknowledge and agree that they have received full and
sufficient consideration for this provision and that this provision is a
material inducement for each party entering into this Agreement.
Page 22 of 27
13.4 Enforcement Costs. In the event of any arbitration or litigation
------------------
arising out of or in connection with this Agreement between Metricom and WFI,
the prevailing party in such arbitration or litigation shall be paid by the
nonprevailing party the costs (including reasonable attorneys' fees and
expenses) incurred by such prevailing party in connection with such arbitration
or litigation.
ARTICLE XIV INJUNCTIVE RELIEF FOR BREACH
----------------------------
14.1 Injunctive Relief for Breach. WFI's obligations of confidentiality
-----------------------------
under the Agreement are of a unique character that gives them particular value;
breach of any of such obligations will result in irreparable and continuing
damage to Metricom for which there will be no adequate remedy at law; and, in
the event of such breach, Metricom will be entitled to seek injunctive relief
and/or a decree for specific performance and such other and further relief as
may be proper (including monetary damages if appropriate).
ARTICLE XV LIMITATION OF LIABILITY
-----------------------
15.1 Exclusion of Consequential Damages. Neither Metricom or WRI shall be
-----------------------------------
liable, in any event, for any special, indirect, incidental or consequential
damages of any nature arising at any time or from any cause whatsoever,
including specifically, but without limitation, loss of profits or revenue, loss
of use of Components or the Services, non-operation or increased expense of
operation or maintenance of Components or Services, cost of capital, interest or
cost of purchased or replacement equipment or systems.
ARTICLE XVI GENERAL PROVISIONS
------------------
16.1 Independent Contractor. WFI is and shall act as an independent
-----------------------
contractor in the performance of its obligations under this Agreement.
Notwithstanding the foregoing, both Parties acknowledge and agree that WFI
employees, during the Initial Term and any Renewal Terms, shall be working at
the direction and management of Metricom; however, WFI shall retain full control
of and supervision over its own employees. WFI's personnel performing Services
are agents, employees or subcontractors of WFI and are not employees of
Metricom. Nothing herein shall be deemed to create any other relationship
between the Parties, including, without limitation, a partnership, joint or
shared venture, employer-employee or attorney-client relation. WFI shall 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. WFI will honor Metricom's
request for the removal of any particular employee of WFI from the Project,
provided that Metricom has first submitted a written request to WFI setting
forth lawful and reasonable reasons for such request.
16.2 Notices. All notices pertaining to this Agreement shall be in writing
--------
and shall be sufficient when sent (i) by registered or certified mail, return
receipt requested, upon verification of receipt; (ii) by personal delivery when
delivered personally; (iii) by overnight courier upon written verification of
receipt; or (iv) by telecopy, or facsimile transmission (with oral
confirmation), at the following address or at such other address for either
party as it shall from time to time specify in a Notice to the other party which
complies with the requirement of this Section 16.2:
If to Metricom:
---------
[***]
General Counsel
Metricom, Xxx.000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Telephone: 000-000-0000
Fax: 000-000-0000
Page 23 of 27
-------------
* CONFIDENTIAL TREATMENT REQUEST(ED)
If to WFI:
----
Xxxxxx Xxxxxx, Ph.D. President
Wireless Facilities, Inc.
San Diego Tech Center
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
16.3 Representations and Remedies. Neither party makes any representations,
----------------------------
covenants, warranties, or guarantees, express or implied, other than those
expressly set forth herein. Nothing herein shall be construed as limiting either
party's right to any other remedies at law, including recovery of damages for
breach of the Agreement.
16.4 Solicitation of Employment. WFI and Metricom agree that, during the
---------------------------
Initial Term and any Renewal Terms of this Agreement, and for [***] after the
expiration or earlier termination of this Agreement, neither Party shall solicit
nor accept for employment any employees of the other Party who have worked on or
performed Services in connection with the Project, without first obtaining the
express written consent of the other Party.
16.5 Interpretation.
---------------
(a) Waivers and Amendments. Waiver by either Party of any default
-----------------------
hereunder by 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 each Party.
(b) Governing Law; Consent to Jurisdiction and Venue. This Agreement
-------------------------------------------------
shall be construed in accordance with the laws of the State of
California, irrespective of its conflict of law principles. Each
Party hereby agrees to submit to the in personam jurisdiction of and
--------
consents to the laying of venue in the courts in San Diego,
California for any suit, action or proceeding between the Parties
that arises out of this Agreement or the Parties' performance of
their obligations hereunder, and expressly agrees to waive any
defense thereto.
(c) Severability. If any provision or any part of a provision of this
------------
Agreement 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.
(d) Survival. The terms, conditions and warranties contained in this
---------
Agreement that by their sense and context are intended to survive
the termination or expiration of this Agreement shall so survive;
including, without limitation, the provisions of Sections 5, 9, 10,
14 and 16.
(e) Assignment. This Agreement is binding upon and inures to the
-----------
benefit of the Parties and their respective permitted successors and
assigns. A Party may assign its rights and/or delegate its duties
under this Agreement to any third party only with the prior written
consent, which shall not be unreasonable withheld, of the other
Party, except that an assignment to a third party that controls, is
controlled by, is under common control with, or
Page 24 of 27
-------------
* CONFIDENTIAL TREATMENT REQUEST(ED)
is the legal successor of the assigning Party shall not require the
non-assigning Party's consent provided, however, that the assignee
shall expressly assume the assigning Party's obligations hereunder
and shall be subject to all of the terms and conditions of this
Agreement. Any assignment of rights or delegation of duties under
this Agreement by a Party will not release that Party from its
obligations hereunder. Any assignment contrary to these provision
shall be null and void.
(f) Headings; Construction; Incorporation of Recitals. The headings of
--------------------------------------------------
the paragraphs of this Agreement 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. The recitals set forth in the beginning of this Agreement
are hereby incorporated and made a material part hereof.
(g) Further Assurance. The Parties shall execute and deliver such
------------------
further documents and instruments and perform such further acts as
may be reasonably be required to carry out the intent and
purposes of this Agreement.
(h) Enforceability. Indemnities against, releases from, assumptions of
---------------
and limitations on liability expressed in this Agreement, as well as
waivers of subrogation rights, shall apply even in the event of the
fault, negligence or strict liability of the party indemnified or
released or whose liability is limited or assumed or against whom
rights of subrogation are waived and shall extend to the officers,
directors, employees, licensors, agents, partners and related
entities of such party and its partners and related entities.
(i) No Third Party Beneficiaries. The parties agree to look solely to
-----------------------------
each other with respect to the obligations and liability arising in
connection with this Agreement and the Services performed hereunder.
This Agreement and each and every provision hereof is for the
exclusive benefit of Metricom and WFI their successors and assigns
and not for the benefit of any third.
(j) Audit Rights. Metricom may audit and inspect WFI's records and
-------------
accounts covering reimbursable costs, unit rates, fixed rates, unit
prices, and time and material costs for a period of one (1) year
following the invoicing for such Services. The purpose of any such
audit shall be only for verification of such costs, and Company
shall not be required to keep records of or provide access to the
make-up of lump sums, fixed rates or amounts expressed as a
percentage of other costs.
16.6 Confidentiality. Each Party may make available ("Disclosing Party") to
----------------
the other ("Receiving Party") access to certain trade secrets and other
confidential technical, business and financial information, including the
contents of this Agreement and the Exhibits thereto (collectively, "Confidential
Information"). So long as and to the extent that Confidential Information is
clearly and identifiably marked "Confidential" or "Proprietary" (if in tangible
form) or is not generally available to the public from other sources, each Party
shall safeguard such Confidential Information in the manner in which it
safeguards its own confidential information, and shall not disclose Confidential
Information to its employees, contractors and agents, except to the extent
necessary to enable it to fulfill its obligations under this Agreement. The
Parties obligations set forth in this Section 17.8 shall not apply with respect
to any portion of the Confidential Information that the Receiving Party can
document by competent proof that such portion: (a) was in the public domain at
the time it was communicated to the Receiving Party by the Disclosing Party; (b)
entered the public domain through no fault of the Receiving Party, subsequent to
the time it was communicated to the Receiving Party by the Disclosing Party; (c)
was in Receiving Party's possession free of any obligation of confidence at the
time it was communicated to Receiving Party by Disclosing Party; (d) was
rightfully communicated to Receiving Party free of any obligation of confidence
subsequent to the time it was communicated to Receiving Party by
Page 25 of 27
the Disclosing Party; (e) was developed by employees or agents of Receiving
Party independently of and without reference to any information communicated to
Receiving Party by Disclosing Party; or (f) was communicated by Disclosing Party
to an unaffiliated third party free of any obligation of confidentiality. In
addition, Receiving Party may disclose the Disclosing Party's Confidential
Information in response to a valid order by a court or other governmental body,
as otherwise required by law. All Confidential Information furnished to the
Receiving Party by the Disclosing Party is the sole and exclusive property of
the Disclosing Party or its suppliers or customers.
16.7 No Conflict of Interest. During the term of this Agreement, WFI will not
------------------------
accept work, enter into a contract, or accept an obligation from any third party
which would prevent WFI from performing its obligations under this Agreement.
16.8 Exhibit List.
-------------
Exhibit I: Statement of Work/Deliverables
Exhibit II: Project Schedule
Exhibit III: Schedule of Values
16.9 Conflicting Provisions. This Agreement, as defined in this Section
-----------------------
16.9, sets forth the full and complete understanding of the parties as of the
date first above stated, and it supersedes any and all agreements and
representations made or dated prior thereto. In the event of any conflict
between the following documents, the terms and provisions shall govern in the
following order:
(i) any Amendments or Changes then in effect, in the inverse order of
their dates of effectiveness;
(ii) this Agreement, excluding all Exhibits;
(iii) the Statement of Work, Exhibit I;
(iv) all other Exhibits.
Each party shall notify the other in writing immediately upon discovering
any conflict among the documents listed above.
16.10 Entire Agreement; Modifications. This Agreement, including the
--------------------------------
Exhibits 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 and contemporaneous agreements, representations,
statements, negotiations, understandings and undertakings, whether written or
oral, are superseded by this Agreement. This Agreement may be modified only in
a written document signed by both Parties.
THE PARTIES ACKNOWLEDGE AND AGREE THE TERMS AND CONDITIONS OF THIS AGREEMENT
HAVE BEEN FREELY, FAIRLY AND THOROUGHLY NEGOTIATED. FURTHER, THE PARTIES
ACKNOWLEDGE AND AGREE SUCH TERMS AND CONDITIONS, INCLUDING BUT NOT LIMITED TO
THOSE RELATING TO WAIVERS, ALLOCATIONS OF, RELEASES FROM, INDEMNITIES AGAINST
AND LIMITATIONS OF LIABILITY, WHICH MAY REQUIRE CONSPICUOUS IDENTIFICATION, HAVE
NOT BEEN SO IDENTIFIED BY MUTUAL AGREEMENT AND THE PARTIES HAVE ACTUAL KNOWLEDGE
OF THE INTENT AND EFFECT OF SUCH TERMS AND CONDITIONS. EACH PARTY ACKNOWLEDGES
THAT IN EXECUTING THIS AGREEMENT THEY RELY SOLELY ON THEIR OWN JUDGMENT, BELIEF,
AND KNOWLEDGE, AND SUCH ADVICE AS THEY MAY HAVE RECEIVED FROM THEIR OWN COUNSEL,
AND THEY HAVE NOT
Page 26 of 27
BEEN INFLUENCED BY ANY REPRESENTATION OR STATEMENTS MADE BY ANY OTHER PARTY OR
ITS COUNSEL. NO PROVISION IN THIS AGREEMENT IS TO BE INTERPRETED FOR OR AGAINST
ANY PARTY BECAUSE THAT PARTY OR ITS COUNSEL DRAFTED SUCH PROVISION.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by
their duly authorized representatives as of the Effective Date.
METRICOM, INC. WIRELESS FACILITIES, INC.
/s/ Xxxx X. Xxxxxxxx /s/ Xxxxxx X. Xxxxxx
-------------------------- -------------------------------
By: Xxxx X. Xxxxxxxx By: Xxxxxx X. Xxxxxx
----------------------- ----------------------------
Title: General Counsel Title: President
-------------------- -------------------------
Date: 09-27-99 Date: 09-27-99
--------------------- --------------------------
Page 27 of 27
EXHIBIT I
TO
MASTER SERVICES AGREEMENT
BETWEEN METRICOM, INC. AND WIRELESS FACILITIES, INC.
DATED SEPTEMBER 21, 1999
STATEMENT OF WORK FOR RF ENGINEERING
------------------------------------
Services Description:
This scope of work describes the tasks to be performed for the turnkey RF
engineering services ("RF Engineering Services"). The task descriptions
include Metricom responsibilities, WFI responsibilities, task descriptions,
and deliverables for each phase of the project.
Warranty:
In accordance with Section 6.1 of the Agreement, the WFI Warranty Period for
this Part I will be [***] from the date of entitlement for payment
for Punch List Complete/Site Acceptance, as defined in Exhibit III of the
Agreement.
Term of Agreement:
WFI and Metricom have executed a Master Services Agreement and this Statement
of Work, which, taken together, form an exclusive agreement between WFI and
Metricom for the provisioning of RF Engineering Services as set forth in this
Statement of Work. The exclusivity of the Agreement for RF Engineering
Services expires [***], or upon completion of the [***] which occurs first, at
the following rates.
1. $[***] dollars per site up to an estimate of [***] sites
2. $[***] dollars per site after [***] sites up to an estimate of [***]
sites.
Task 1 Project Initiation
-------------------------
A. Services Description:
This task describes the mutual tasks and responsibilities for initiation of
the RF engineering.
B. WFI Responsibilities:
[***]
Metricom Confidential and Proprietary
WFI Exhibit I to Master Services Agreement dated 09/21/99
1 of 5
-------------
* CONFIDENTIAL TREATMENT REQUEST(ED)
[***]
C. Metricom responsibilities:
1. Provide network equipment specification documentation
2. Provide friendly/bulk site databases
3. Define GSA coverage boundaries
4. Network configuration and Decibel Planner tools training
5. Design criteria including link budget
6. Terrain Databases
7. Propagation tool software (Decibel Planner)
8. Supply drive test equipment
D. Project Initiation Deliverables:
1. Training complete
2. Engineers and drive test teams in market
Task 2: Preliminary Design
--------------------------
A. Services Description:
This task describes the mutual responsibilities required for completing the
preliminary RF design.
B. WFI responsibilities:
[***]
Metricom Confidential and Proprietary
WFI Exhibit I to Master Services Agreement dated 09/21/99
2 of 5
-------------
* CONFIDENTIAL TREATMENT REQUEST(ED)
[***]
C. Metricom Responsibilities:
1. Approve preliminary design
2. Attendance by approval representatives at the design review
D. Deliverables
1. Preliminary design review
2. Sign-off on primary design
Task 3: Initial Search Ring Release
-----------------------------------
A. Service Description:
In this task RF engineering will release search area rings to the leasing
teams.
B. WFI responsibilities:
1. Prepare initial search rings
2. Release search rings to Metricom for review
3. Release search rings to site development teams as instructed by Metricom
Metricom responsibilities:
1. Provide personnel to review and approve search rings.
D. Deliverables
1. Search Ring packages issued to leasing and zoning
Metricom Confidential and Proprietary
WFI Exhibit I to Master Services Agreement dated 09/21/99
3 of 5
-------------
* CONFIDENTIAL TREATMENT REQUEST(ED)
Task 4: Field Design And Candidate Approvals:
---------------------------------------------
A. Services Description:
Task 4 involves the mutual responsibilities and tasks needed for RF
engineering to approve site locations. The process is an iterative process
with all of the disciplines.
B. WFI responsibilities:
[***]
C. Metricom responsibilities:
1. Provide approval authority and sign-off for sites
D. Deliverables:
1. RF approval and sign-off of primary candidates
2. RF candidate information forms complete
Metricom Confidential and Proprietary
WFI Exhibit I to Master Services Agreement dated 09/21/99
4 of 5
-----------
* CONFIDENTIAL TREATMENT REQUEST(ED)
Task 5: Final Site Acceptance
-----------------------------
A. Services Description:
This task describes the mutual responsibilities and tasks needed to accept
the site.
B. WFI responsibilities:
[***]
C. Metricom responsibilities:
1. Provide final design approval authority
D. Deliverables:
1. Final design review
2. Delivery all site information Site Candidate Package to Metricom
3. RF site acceptance complete
This Statement of Work is an attachment to the Master Services Agreement between
Metricom, Inc. and Wireless Facilities, Inc. dated September 21, 1999. This
Statement of Work may not be modified except in writing by both Parties.
Accepted by:
Metricom, Inc. Wireless Facilities, Inc.
/s/ Xxxx X. Xxxxxxxx /s/ Xxxxxx X. Xxxxxx
---------------------------------- ----------------------------------
By: Xxxx X. Xxxxxxxx By: Xxxxxx X. Xxxxxx
------------------------------- -------------------------------
Title: General Counsel Title: President
---------------------------- ----------------------------
Date: 9-27-99 Date: 09-27-99
----------------------------- ----------------------------
Metricom Confidential and Proprietary Date:
WFI Exhibit I to Master Services Agreement dated 09/21/99
5 of 5
----------
* CONFIDENTIAL TREATMENT REQUEST(ED)
EXHIBIT II
--------------------------------------------------------------------------------
EXHIBIT II: PROJECT SCHEDULE FOR RP ENGINEERING
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
r 0xx Xxxxxxx 0xx Xxxxxxx 0xx Xxxxxxx 0xx Quarter 4th Quarter 1st Quarter
--------------------------------------------------------------------------------------------------
Task Name Aug Sep Oct Nov Dec Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec Jan Feb
[***] [***]
EXHIBIT III
TO
MASTER SERVICES AGREEMENT
BETWEEN METRICOM, INC. AND WIRELESS FACILITIES, INC.
DATED SEPTEMBER 21, 1999
RF ENGINEERING SCHEDULE OF VALUES
PART I-PRICE SCHEDULE
WFI and Metricom have executed a Master Services Agreement that is exclusive
between WFI and Metricom for all RF engineering services as follows:
1. [***] dollars per site up to an estimate of [***] sites
2. [***] dollars per site after [***] sites up to an estimate of [***]
sites.
The Exclusivity Agreement for RF engineering expires [***], or after completion
of [***], whichever occurs first.
PART II-MILESTONE PAYMENT SCHEDULE
RF ENGINEERING MILESTONE PAYMENT SCHEDULE
-----------------------------------------------------------------------------------------------------------------
NO. MILESTONE PCT DELIVERABLE
-----------------------------------------------------------------------------------------------------------------
[***] [***] [***] [***]
-----------------------------------------------------------------------------------------------------------------
CONDITIONS
Milestone one: [***] [***]
Milestone two: [***] [***]
Milestone three: [***] [***]
Milestone four: [***] [***]
Metricom Confidential and Proprietary
WFI Exhibit III to Master Services Agreement dated September 21, 1999
Page 1 of 3
-----------
* CONFIDENTIAL TREATMENT REQUEST(ED)
PART III-PROFESSIONAL SERVICES HOURLY RATES
The hourly rates set forth below shall apply to all Services performed by WFI
that are in addition to those described in the Statement of Work. Metricom
shall compensate WFI on an hourly basis in accordance with the rates set forth
in the table below. WFI may invoice Metricom monthly for all hourly-billed
Services rendered the previous period.
1. These hourly rates do not include expenses or taxes.
WIRELESS FACILITIES, INC.
1999 Hourly Services Rates
--------------------------------------------------------------------------------------------------------------
Service Type Employment Category Hourly Rate Monthly Rate
--------------------------------------------------------------------------------------------------------------
Program Management 1 Project Manager $[***] $[***]
2 Project Coordinator $[***] $[***]
3 Administrative Assistant $[***] $[***]
RF Engineering 4 Principal Engineer $[***] $[***]
5 Senior Engineer $[***] $[***]
6 Design Engineer $[***] $[***]
7 Engineer $[***] $[***]
8 Associate Engineer $[***] $[***]
9 Technician $[***] $[***]
Network Engineering 10 Principal Engineer $[***] $[***]
11 Senior Engineer $[***] $[***]
12 Design Engineer $[***] $[***]
13 Engineer $[***] $[***]
14 Associate Engineer $[***] $[***]
15 Technician $[***] $[***]
Site Acquisition 16 Leasing Manager $[***] $[***]
17 Zoning Manager $[***] $[***]
18 Site Acquisition Specialist $[***] $[***]
19 Zoning Specialist $[***] $[***]
20 Paralegal $[***] $[***]
Construction Management 21 CM Construction Manager $[***] $[***]
22 CM Operations Manager $[***] $[***]
23 CM Construction Engineer $[***] $[***]
24 CM Project Coordinator $[***] $[***]
25 CM Utility Coordinator $[***] $[***]
26 CM Field Supervisor $[***] $[***]
Installation & Maintenance 27 Cell-site Engineer $[***] $[***]
28 Switch Engineer $[***] $[***]
29 Engineer Supervisor $[***] $[***]
30 Sr. Installer $[***] $[***]
31 Installer $[***] $[***]
Documentation 32 Document Controls Supervisor $[***] $[***]
33 Document Controls $[***] $[***]
Logistics 34 Logistics Manager $[***] $[***]
GIS 35 GIS Manager $[***] $[***]
36 GIS Specialist $[***] $[***]
Business Consulting 37 Sr. Partner $[***] $[***]
38 Partner $[***] $[***]
39 Director $[***] $[***]
40 Business Consultant $[***] $[***]
Advanced Technology 41 Principal Staff Engineer $[***] $[***]
42 Sr. Staff Engineer $[***] $[***]
43 Staff Engineer $[***] $[***]
--------------------------------------------------------------------------------------------------------------
Metricom Confidential and Proprietary
WFI Exhibit III to Master Services Agreement dated September 21, 1999
Page 2 of 3
-----------
* CONFIDENTIAL TREATMENT REQUEST(ED)
PART IV-ADDITIONAL EXPENSES
Expense Summary
---------------
The following table summarizes which expenses are included in WFI's fixed
pricing and which are considered pass-through expenses. WFI may invoice Metricom
bi-weekly for reimbursable pass-through expenses.
---------------------------------------------------------------------------------------------------------------------------
WFI Metricom Provided or
Included Reimbursed to WFI as
Pass-Through expenses
Expense Summary:
----------------
Architect and Engineering Services [***] [***]
Capital lease costs (if necessary) [***] [***]
Cellular Phones/Pagers [***] [***]
Cellular/Paging Service (project related) [***] [***]
Crane rental for drive testing [***] [***]
Construction Contractor for site construction [***] [***]
Easement Acquisition Costs (if necessary) [***] [***]
Environmental Site Assessment [***] [***]
Expert Testimony (if necessary) [***] [***]
Land-use attorney (if necessary) [***] [***]
Lease option payments [***] [***]
License & Permit Fees [***] [***]
Field Expenses (maps, deeds, film developing, etc.) [***] [***]
Formal Site Survey [***] [***]
Frequency Coordination Study (preliminary and final) [***] [***]
GIS/Mapping (as necessary) [***] [***]
Mechanical and Electrical Drawings [***] [***]
Vehicle Expenses (project related) [***] [***]
Personal Computers & Related Software [***] [***]
Office Supplies [***] [***]
CW Drive Test Equipment [***] [***]
Propagation Tools (software), terrain data bases [***] [***]
Propagation Tools (hardware computer and plotter) [***] [***]
Overnight Mail (project related) [***] [***]
Photo Simulations (as necessary) [***] [***]
Soil Tests (geotechnical testing) [***] [***]
Structural Analysis [***] [***]
Title (property ownership verification) Report Cost [***] [***]
Tower Stress and Foundation Analysis [***] [***]
Travel and Living Expenses [***] [***]
Zoning/Filing/Permitting Fees [***] [***]
EXPENSES INCLUDED IN OFFICE SPACE (See Note (1)
------------------------------------------------
Telephone/FAX Service (local/long distance) (1) [***] [***]
Office Rent, Furniture & Equipment (1) [***] [***]
Utilities (1) [***] [***]
---------------------------------------------------------------------------------------------------------------------------
Note(1): Office Space will be compensated at a rate of $[***] per square foot
per month, said rate will be subject to negotiation by Metricom and WFI based on
demonstrated and substantial increased actual cost in a specific market.
Metricom Confidential and Proprietary
WFI Exhibit III to Master Services Agreement dated September 21, 1999
Page 3 of 3
---------
* CONFIDENTIAL TREATMENT REQUEST(ED)
Task 5: Final Site Acceptance
-----------------------------
A. Services Description:
This task describes the mutual responsibilities and tasks needed to accept
the site.
B. WFI responsibilities:
[***]
C. Metricom responsibilities:
1. Provide final design approval authority
D. Deliverables:
1. Final design review
2. Delivery all site information Site Candidate Package to Metricom
3. RF site acceptance complete
This Statement of Work is an attachment to the Master Services Agreement between
Metricom, Inc. and Wireless Facilities, Inc. dated September 21, 1999. This
Statement of Work may not be modified except in writing by both Parties.
Accepted by:
Metricom, Inc. Wireless Facilities, Inc.
/s/ XXXX X. XXXXXXXX /s/ XXXXXX X. XXXXXX
------------------------------------ ---------------------------------------
By: Xxxx X. Xxxxxxxx By: Xxxxxx X. Xxxxxx
--------------------------------- ------------------------------------
Title: General Counsel Title: President
------------------------------ ---------------------------------
Date: 9-27-99 Date: 09-27-99
------------------------------- ----------------------------------
EXHIBIT III
TO
MASTER SERVICES AGREEMENT
BETWEEN METRICOM, INC. AND WIRELESS FACILITIES, INC.
DATED SEPTEMBER 21, 1999
RF ENGINEERING SCHEDULE OF VALUES
PART I-PRICE SCHEDULE
WFI and Metricom have executed a Master Services Agreement that is exclusive
between WFI and Metricom for all RF engineering services as follows:
1. [***] dollars per site up to an estimate of [***] sites
2. [***] dollars per site after [***] sites up to an estimate of [***]
sites.
The Exclusivity Agreement for RF engineering expires [***], or after completion
of [***], whichever occurs first.
PART II-MILESTONE PAYMENT SCHEDULE
RF ENGINEERING MILESTONE PAYMENT SCHEDULE
-----------------------------------------------------------------------------------------------------------------
NO. MILESTONE PCT DELIVERABLE
-----------------------------------------------------------------------------------------------------------------
[***] [***] [***] [***]
-----------------------------------------------------------------------------------------------------------------
CONDITIONS
Milestone one: [***] [***]
Milestone two: [***] [***]
Milestone three: [***] [***]
Milestone four: [***] [***]
Metricom Confidential and Proprietary
WFI Exhibit III to Master Services Agreement dated September 21, 1999
Page 1 of 3
-----------
* CONFIDENTIAL TREATMENT REQUEST(ED)
PART III-PROFESSIONAL SERVICES HOURLY RATES
The hourly rates set forth below shall apply to all Services performed by WFI
that are in addition to those described in the Statement of Work. Metricom
shall compensate WFI on an hourly basis in accordance with the rates set forth
in the table below. WFI may invoice Metricom monthly for all hourly-billed
Services rendered the previous period.
1. These hourly rates do not include expenses or taxes.
WIRELESS FACILITIES, INC.
1999 Hourly Services Rates
--------------------------------------------------------------------------------------------------------------
Service Type Employment Category Hourly Rate Monthly Rate
--------------------------------------------------------------------------------------------------------------
Program Management 1 Project Manager $[***] $[***]
2 Project Coordinator $[***] $[***]
3 Administrative Assistant $[***] $[***]
RF Engineering 4 Principal Engineer $[***] $[***]
5 Senior Engineer $[***] $[***]
6 Design Engineer $[***] $[***]
7 Engineer $[***] $[***]
8 Associate Engineer $[***] $[***]
9 Technician $[***] $[***]
Network Engineering 10 Principal Engineer $[***] $[***]
11 Senior Engineer $[***] $[***]
12 Design Engineer $[***] $[***]
13 Engineer $[***] $[***]
14 Associate Engineer $[***] $[***]
15 Technician $[***] $[***]
Site Acquisition 16 Leasing Manager $[***] $[***]
17 Zoning Manager $[***] $[***]
18 Site Acquisition Specialist $[***] $[***]
19 Zoning Specialist $[***] $[***]
20 Paralegal $[***] $[***]
Construction Management 21 CM Construction Manager $[***] $[***]
22 CM Operations Manager $[***] $[***]
23 CM Construction Engineer $[***] $[***]
24 CM Project Coordinator $[***] $[***]
25 CM Utility Coordinator $[***] $[***]
26 CM Field Supervisor $[***] $[***]
Installation & Maintenance 27 Cell-site Engineer $[***] $[***]
28 Switch Engineer $[***] $[***]
29 Engineer Supervisor $[***] $[***]
30 Sr. Installer $[***] $[***]
31 Installer $[***] $[***]
Documentation 32 Document Controls Supervisor $[***] $[***]
33 Document Controls $[***] $[***]
Logistics 34 Logistics Manager $[***] $[***]
GIS 35 GIS Manager $[***] $[***]
36 GIS Specialist $[***] $[***]
Business Consulting 37 Sr. Partner $[***] $[***]
38 Partner $[***] $[***]
39 Director $[***] $[***]
40 Business Consultant $[***] $[***]
Advanced Technology 41 Principal Staff Engineer $[***] $[***]
42 Sr. Staff Engineer $[***] $[***]
43 Staff Engineer $[***] $[***]
--------------------------------------------------------------------------------------------------------------
Metricom Confidential and Proprietary
WFI Exhibit III to Master Services Agreement dated September 21, 1999
Page 2 of 3
-----------
* CONFIDENTIAL TREATMENT REQUEST(ED)
PART IV-ADDITIONAL EXPENSES
Expense Summary
---------------
The following table summarizes which expenses are included in WFI's fixed
pricing and which are considered pass-through expenses. WFI may invoice Metricom
bi-weekly for reimbursable pass-through expenses.
---------------------------------------------------------------------------------------------------------------------------
WFI Metricom Provided or
Included Reimbursed to WFI as
Pass-Through expenses
Expense Summary:
----------------
Architect and Engineering Services [***] [***]
Capital lease costs (if necessary) [***] [***]
Cellular Phones/Pagers [***] [***]
Cellular/Paging Service (project related) [***] [***]
Crane rental for drive testing [***] [***]
Construction Contractor for site construction [***] [***]
Easement Acquisition Costs (if necessary) [***] [***]
Environmental Site Assessment [***] [***]
Expert Testimony (if necessary) [***] [***]
Land-use attorney (if necessary) [***] [***]
Lease option payments [***] [***]
License & Permit Fees [***] [***]
Field Expenses (maps, deeds, film developing, etc.) [***] [***]
Formal Site Survey [***] [***]
Frequency Coordination Study (preliminary and final) [***] [***]
GIS/Mapping (as necessary) [***] [***]
Mechanical and Electrical Drawings [***] [***]
Vehicle Expenses (project related) [***] [***]
Personal Computers & Related Software [***] [***]
Office Supplies [***] [***]
CW Drive Test Equipment [***] [***]
Propagation Tools (software), terrain data bases [***] [***]
Propagation Tools (hardware computer and plotter) [***] [***]
Overnight Mail (project related) [***] [***]
Photo Simulations (as necessary) [***] [***]
Soil Tests (geotechnical testing) [***] [***]
Structural Analysis [***] [***]
Title (property ownership verification) Report Cost [***] [***]
Tower Stress and Foundation Analysis [***] [***]
Travel and Living Expenses [***] [***]
Zoning/Filing/Permitting Fees [***] [***]
EXPENSES INCLUDED IN OFFICE SPACE (See Note (1)
------------------------------------------------
Telephone/FAX Service (local/long distance) (1) [***] [***]
Office Rent, Furniture & Equipment (1) [***] [***]
Utilities (1) [***] [***]
---------------------------------------------------------------------------------------------------------------------------
Note(1): Office Space will be compensated at a rate of $[***] per square foot
per month, said rate will be subject to negotiation by Metricom and WFI based on
demonstrated and substantial increased actual cost in a specific market.
Metricom Confidential and Proprietary
WFI Exhibit III to Master Services Agreement dated September 21, 1999
Page 3 of 3
---------
* CONFIDENTIAL TREATMENT REQUEST(ED)
EXHIBIT I-A
to
MASTER SERVICES AGREEMENT
Between Metricom, Inc. and Wireless Facilities, Inc.
Dated September 21, 1999
STATEMENT OF WORK RFP #AB-003
Part I: Site Acquisition Scope of Work
--------------------------------------
Overview:
Part I of this document describes the tasks and responsibilities of Metricom
and the Contractor to lease WAP sites.
Warranty:
In accordance with Section 6.1 of the Agreement, the Contractor Warranty
Period for this Part I will be [***] Days from the date of entitlement for
payment for lease signed, as defined in Exhibit III of the Agreement.
Part I: Task 1- Site Identification
A. Services Description:
After RF preliminary design approval and upon the Metricom release of search
areas, this task defines the responsibilities of each party to identify
potential sites.
Note that Metricom typically has utilized only existing structures for its WAP
sites (i.e., only existing buildings, water towers, communications sites, or
other similar type structures). Therefore, raw land sites upon which Metricom
would be required to build towers would not be considered except in the most
exceptional of circumstances.
B. Contractor Responsibilities
1. Upon the release of search areas, the Contractor shall meet with the
WFI RF Engineer and LGRPA and review coverage objectives and minimum
criteria for each search area.
2. The Contractor shall conduct a physical review of the search area and
identify up to three (3) potential WAP site candidates, which meet the
minimum requirements as defined by Metricom.
3. The Contractor shall make contact with the owner(s) of the potential
sites and confirm with the owner(s) a willingness to Lease the
property to Metricom for the purpose of locating a WAP facility.
4. The Contractor shall deliver to the owner(s) an information package
containing WAP facility siting information and a copy of the Metricom
standard Lease agreement.
5. The Contractor shall prepare and submit a site candidate ranking
package ("Candidate Package") for each site (containing the address,
owner/contact information, photos, maps, property data and zoning
information), in a format approved by Metricom, to the RF Manager and
LGRPA for evaluation.
--------------------------------------------------------------------------------
Metricom Confidential and Proprietary
WFI Exhibit I-A to Master Services Agreement dated 09/21/99
Metricom Initials: /s/ DWM 1 of 20 WFI Initials: /s/ MT
------- ------
--------------------------------------------------------------------------------
* CONFIDENTIAL TREATMENT REQUEST(ED)
6. The contractor shall coordinate with the building owner, on an as
needed basis, to facilitate access for RF Engineering personnel for
drive testing operations.
7. Approval of a candidate site shall serve as the Contractor's notice to
proceed with all site development activity (leasing, zoning,
construction management, interconnect management and installation)
provided an Authorization to Proceed to Zoning has been received on
each WAP Site from the local LGRPA.
8. Upon approval of the candidate site, the Contractor shall be required,
at Metricom's discretion, to negotiate a Lease agreement, which meets
Metricom's legal and pricing requirements.
C. Metricom Responsibilities:
1. Issue search areas to Contractor along with issuing to Contractor its
Notice to Proceed with the Statement of Work under Section 2.3 of the
Agreement.
2. Provide LGRPA contact to approve coverage objective and minimum search
criteria for each search area.
3. Provide copy of Metricom standard lease agreement, legal and pricing
requirements
D. Deliverables:
1. Candidate Package - The Contractor shall prepare and submit a site
candidate ranking package ("Candidate Package") for each site
(containing the address, owner/contact information, photos, maps,
property data and zoning information), in a format approved by
Metricom, to the RF Manager and LGRPA for evaluation.
Part I: Task 2- Site Review & Coordination Activities
A. Services Description:
The Contractor shall schedule site visits whereby the appropriate
disciplines will evaluate the site candidate(s) to select and prioritize
the RF approved sites.
B. Contractor Responsibilities:
1. The Contractor shall work directly with the WFI RF Engineer and assist
in selecting and prioritizing acceptable sites from the candidate
list.
2. The Contractor shall be required to coordinate site visits, landlord
meetings and site tests as required. The selection of sites shall be
based on terrain, zoning, RF, construction feasibility, cost,
permitting and environmental requirements.
3. The site review process will result in 3 outcomes for a candidate
site:
a. Candidate Unconditionally Approved-A candidate site that has been
unconditionally approved by the WFI RF engineer and that meets
Metricom's leasing terms and construction requirements.
b. Candidate Conditionally Approved - A candidate site that requires
further investigation to determine whether it will be
unconditionally approved or rejected.
c. Candidate Rejected - A candidate site that does not meet the RF
design parameters and/or cannot meet acceptable Metricom business
terms/construction requirements. The person(s) who reject the
candidate will clearly describe on the Candidate Review Form the
reason for the rejection.
--------------------------------------------------------------------------------
Metricom Confidential and Proprietary
WFI Exhibit I-A to Master Services Agreement dated 09/21/99
Metricom Initials: /s/ DWM 2 of 20 WFI Initials: /s/ MT
------- ------
--------------------------------------------------------------------------------
. Unconditional approval of a site candidate will serve as
Metricom's Notice to Proceed ("NTP") to Contractor for
leasing, zoning, (including parallel processing of leasing
and zoning tasks) construction management and installation.
4. Each discipline in the GSA (i.e., the Contractor, WFI RF Engineer and
LGRPA) shall meet the following Candidate Review and Response Times:
a. Unconditional Approval: [***] Business Days from the date of
submission of the candidate package by Contractor.
b. Resolution of Issues for Conditional Approval or Rejection: [***]
additional Business Days (for a total of [***] business days from
date of submission of a candidate package by Contractor).
5. The Contractor's Project Manager in charge of the GSA will be
responsible for coordinating and mediating between RF Engineering,
Real Estate, Construction and LGRPA disciplines to select the primary
candidate.
6. Difficult Search Areas - In the event sites are not identified for a
search area that meet the required criteria, the Contractor shall be
required to report what sites are available and work with the WFI RF
Engineer and LGRPA to find the best site for the search area or
redesign the search area. It is the Contractors responsibility to
issue a written notice to Metricom LGRPA.
C. Metricom Responsibilities:
1. The LGRPA is Metricom's oversight person for this process and has sole
authority, in accordance with the WAP Decision Matrix, to approve
business terms that are outside of Metricom's specified parameters.
2. The Contractor's Project Manager will direct issues that cannot be
resolved in the GSA to the Metricom LGRPA.
3. Each discipline in the GSA (i.e., the Contractor, WFI RF Engineer,
Metricom LGRPA) shall meet the following Candidate Review and Response
Times:
a. Unconditional Approval: [***] Business Days from the date of
submission of the candidate package by Contractor.
b. Resolution of Issues for Conditional Approval or Rejection: [***]
additional Business Days (for a total of [***] business days from
date of submission of a candidate package by Contractor).
4. Difficult Search Areas - In the event sites are not identified for a
search area that meet the required criteria, the Contractor shall be
required to report what sites are available and work with the WFI RF
Engineer and LGRPA to find the best site for the search area or
redesign the search area. In this case it is Metricom's responsibility
to acknowledge the notice.
D. Deliverables:
1. Update Site Candidate Package
2. Search Ring Package
3. Candidate Review Form
--------------------------------------------------------------------------------
Metricom Confidential and Proprietary
WFI Exhibit I-A to Master Services Agreement dated 09/21/99
Metricom Initials: /s/ DWM 3 of 20 WFI Initials: /s/ MT
------- ------
--------------------------------------------------------------------------------
* CONFIDENTIAL TREATMENT REQUEST(ED)
Part I: Task 3- Lease Acquisition
A. Services Description:
Task 3 describes the process and mutual responsibilities to obtain leases
for Metricom Sites. Also the interaction between all of the disciplines and
responsible authorities for approving the leases is addressed.
B. Contractor Responsibilities:
1. The Contractor shall negotiate the terms and conditions of the
Metricom standard Lease with the site owner in accordance with
Metricom's Standard pricing and legal requirements.
2. The Contractor shall deliver a formal Lease agreement signed by the
property owner(s) or their legal representative(s) and a Letter of
Authorization (permission to file a zoning application) for the
priority one candidate in each search area.
3. Title Search: As a general rule, Metricom will require a title search
on all sites requiring new tower construction and/or sites requiring
excavation and/or trenching for the placement of the WAP cabinet and
power and telco. Metricom will require a title search on an as-needed
basis only
a. If needed, The Contractor shall order the title search and
deliver a copy of the results to Metricom as directed by
Metricom.
b. If needed, the Contractor shall order a title search as
directed by Metricom on an exception basis for all other
site types.
4. Legal Assistance: The Contractor shall supply legal review personnel
-
for each of the markets in which Contractor is supplying WAP site
development services.
a. Contractor's legal review personnel shall use their best
efforts to assist Contractor and Metricom in obtaining
agreements in accordance with Metricom's guidelines.
b. Contractor and Metricom shall agree upon the procedures for
Metricom's review and approval of License Agreements that
are outside such guidelines.
c. Contractor shall be responsible for the performance and
turnaround times of its legal reviewers.
C. Metricom Responsibilities:
1. Title Search:
a. Metricom shall review and approve all title search
documents.
b. The cost of title reports shall be borne by Metricom.
2. Legal Assistance:
a. Metricom shall provide the standard Lease and legal
guidelines for Lease negotiations to the Contractor.
b. Metricom shall provide guidelines for negotiating non-
standard agreements.
3. Contractor and Metricom shall agree upon the procedures for Metricom's
review and approval of Lease Agreements that are outside such
guidelines.
4. Metricom shall be responsible for the performance and turnaround times
of its legal reviewers.
D. Deliverables
--------------------------------------------------------------------------------
Metricom Confidential and Proprietary
WFI Exhibit I-A to Master Services Agreement dated 09/21/99
Metricom Initials: /s/ DWM 4 of 20 WFI Initials: /s/ MT
------- ------
--------------------------------------------------------------------------------
1. Update Site Candidate Package:
a. Signed Lease or Lease Option Documentation
b. Title search
Part I: Task 4- Environmental Studies
A. Services Description:
When the need occurs, Task 4 explains the process and mutual
responsibilities of working with Metricom to order environmental studies.
However, Contractor should avoid any and all sites requiring NEPA
certification and/or Phase 1 Review unless no other qualified sites are
available and only after discussion with local LGRPA.
B. Contractor Responsibilities:
1. The Contractor shall order environmental studies (typically limited to
NEPA Compliance Review and Phase 1 Environmental Review) from Metricom
approved vendors where required by the site criteria guidelines issued
approved by Metricom.
2. Identify sites where environmental studies are needed and communicate
to Metricom.
3. Receive authorization by Metricom to proceed with environmental
studies.
C. Metricom Responsibilities:
1. Approval to proceed, within two business days, with the initiation of
environmental studies.
2. Provide Legal guidelines and practices for Environmental Studies in
each market.
3. Provide approval of authorized NEPA consultants.
4. The cost of environmental studies shall be borne by Metricom.
D. Deliverables:
1. An original copy of the results of the Phase 1 or II study
Part I: Task 5- Lease Exhibits
A. Services Description:
Obtain and/or create Exhibits A and B to the lease or license agreement for each
WAP site. Exhibit A is defined as the description of the property on which the
WAP site will be located. Exhibit B is defined as the depiction of Metricom's
leased premises for each WAP site
B. Contractor Responsibilities:
1. The Contractor shall prepare a legal description for the candidate
site meeting the local recording office's requirements for legal
descriptions on recorded documents (if permitted by cutting and
pasting the legal description from the title-vesting document or by
carefully typing same).
---------
2. The Contractor shall prepare or cause the Architect toot prepare a
site diagram including the equipment and antenna configuration to be
used as Exhibit B to the lease and/or for use by other disciplines.
Contractor shall coordinate with the WFI RF Engineer for their
approval of the diagram.
--------------------------------------------------------------------------------
Metricom Confidential and Proprietary
WFI Exhibit I-A to Master Services Agreement dated 09/21/99
Metricom Initials: /s/ DWM 5 of 20 WFI Initials: /s/ MT
------- ------
--------------------------------------------------------------------------------
3. The Contractor shall also obtain, where possible, current as-built
drawings from the landowner to aid in site design and engineering.
C. Metricom Responsibilities:
1. Site equipment layout specification guidelines.
2. Coordinate with Metricom LGRPA, Zoning and A&E personnel proper
drawings for zoning submittal package.
3. Cost of reproduction of existing as built drawings will be borne by
Metricom
D. Deliverables:
1. Lease Exhibits A and B.
Part I: Task 6- Tracking and Reporting
A. Services Description:
This task describes the mutual responsibilities required to track and record the
progress on the project.
B. Contractor Responsibilities:
1. Obtain weekly report format or forms required by Metricom.
2. Maintain current and timely reporting and records of each site
specific data as required and specified by Metricom.
3. Coordinate and manage Weekly meetings to review site status tracking.
C. Metricom Responsibilities:
1. Provide weekly report format or forms required by Metricom.
2. LGRPA will attend Weekly meetings to review site status tracking.
D. Deliverables:
1. Weekly Status Meeting.
2. Site Information Package Updates
--------------------------------------------------------------------------------
Metricom Confidential and Proprietary
WFI Exhibit I-A to Master Services Agreement dated 09/21/99
Metricom Initials: /s/ DWM 6 of 20 WFI Initials: /s/ MT
------- ------
--------------------------------------------------------------------------------
Part I: Task 7- Lease Package and File Close-out
A. Services Description:
This task describes the responsibility of preparing a Lease Package
Documentation Checklist:
B. Contractor Responsibilities:
1. Obtain Three originally signed copies of an approved WAP Lease
agreement signed by a duly authorized representative (per Metricom's
guidelines) of the landlord, Lease summary form, exhibits, title and
environmental reports, draft agreements, photos, maps, correspondence,
a comprehensive negotiator's report, and any other items.
C. Metricom Responsibilities:
1. Format to be provided by Metricom on the Metricom WAP File
Documentation Checklist
D. Deliverables:
1. Obtain Three originally signed copies of an approved WAP Lease
agreement signed by a duly authorized representative (per Metricom's
guidelines) of the landlord, Lease summary form, exhibits, title and
environmental reports, draft agreements, photos, maps, correspondence,
a comprehensive negotiator's report, and any other items.
Part II: Zoning Approvals Scope of Work
---------------------------------------
Services Description:
Part II describes the necessary tasks and mutual responsibilities to obtain
zoning for the WAP sites.
Warranty:
In accordance with Section 6.1 of the Agreement, the Contractor Warranty
Period for this Part II will be [***] Days from the date of entitlement for
payment for zoning approved, as defined in Exhibit III of the Agreement.
Part II: Task 1- Preliminary Investigation:
A. Services Description:
In this task, the contractor works closely with RF Engineering, Site
Acquisition, and Construction to determine the zoning requirements.
--------------------------------------------------------------------------------
Metricom Confidential and Proprietary
WFI Exhibit I-A to Master Services Agreement dated 09/21/99
Metricom Initials: /s/ DWM 7 of 20 WFI Initials: /s/ MT
------- ------
--------------------------------------------------------------------------------
* CONFIDENTIAL TREATMENT REQUEST(ED)
B. Contractor Responsibilities:
1. The Contractor shall obtain any and all required approvals or
zoning variances from all jurisdictions necessary to legally
operate the proposed WAP facility on the selected site.
2. The Contractor shall conduct a physical review of the search area
with all site development disciplines and provide input to
determine the priority one candidate.
3. The Contractor shall review search areas with the WFI RF Engineer
to review minimum criteria for each search area.
4. If no approvals are required, the Contractor shall provide
satisfactory evidence thereof
5. The Contractor shall visit the local zoning jurisdiction and
interpret codes and planning criteria for the search area to
determine any fast-track permit possibilities.
6. The Contractor shall coordinate all activities associated with
zoning applications, meetings and community relations.
7. The Contractor will represent Metricom at up up to [***] required
public meetings and/or hearings and conduct presentations as
required.
8. Zoning Analysis and Strategy:
a. The Contractor will develop a detailed zoning analysis of all
selected sites.
b. The analysis will be site specific and will include but not
be limited to: fees, height restrictions, building codes,
setbacks, exceptions, zoning history, abutter issues, zoning
process, timelines, methods to expedite the standard zoning
process and other pertinent zoning requirements.
c. The Contractor will submit these findings in the WAP Specific
Zoning Analysis form.
d. Together with the LGRPA shall develop a zoning strategy for
the candidate site.
C. Metricom Responsibilities:
1. Provide LGRPA representative for strategy support and approvals.
2. Provide zoning report format
3. Metricom to approve and bear the costs for expert testimony/
lobbyists
D. Deliverables:
1. Zoning ordinance process definition.
2. Detailed WAP Specific Zoning Analysis of all selected sites.
Part II: Task 2- Site Identification/Approval:
A. Services Description:
This task describes the mutual responsibilities and interaction
between all of the site development disciplines in providing input
to determine the priority one candidates.
B. Contractor Responsibilities:
1. The Contractor will perform site walks with RF Engineering,
Construction, and Leasing, and with Architect representative.
a. .
2. Applications
--------------------------------------------------------------------------------
Metricom Confidential and Proprietary
WFI Exhibit I-A to Master Services Agreement dated 09/21/99
Metricom Initials: /s/ DWM 8 of 20 WFI Initials: /s/ MT
------- ------
--------------------------------------------------------------------------------
* CONFIDENTIAL TREATMENT REQUESTED(ED)
a. The Contractor shall prepare and submit the planning permit
application(s) (if required) to the appropriate
jurisdiction(s), including procurement of all associated
reports, photographs and other required visual
representations.
3. Environmental Assessments
a. The Contractor shall coordinate any activities required by
Metricom or the local jurisdiction for Phase I
Environmental Assessment or other applicable environmental
compliance (e.g., NEPA compliance) required to obtain
zoning approval of a candidate property.
b. The Contractor shall order environmental studies from
vendors approved by Metricom where required by the site
criteria guidelines issued approved by Metricom and deliver
a copy of the results to Metricom.
4. Site Plans:
a. The Contractor shall coordinate the generation of required
zoning drawings and modifications form architectural and
engineering firms approved by Metricom.
b. In addition, the Contractor will be responsible for
coordinating and obtaining the Property Owners' approval of
all final zoning plans.
5. The Contractor shall coordinate all activities associated with
zoning applications, meetings and community relations.
6. The Contractor will represent Metricom at up to [***] required
public meetings and/or hearings and conduct presentations as
required.
C. Metricom Responsibilities:
1. Metricom will provide the application fee upon submittal of a
check request from the Contractor.
2. Metricom will review and approve any environmental studies.
3. The cost of environmental studies, visual representations, and
other materials required to submit the zoning applications shall
be borne by Metricom.
4. The cost of drawings, site plans, photo simulations and other
visual representations must be pre-authorized by Metricom and will
be borne by Metricom.
5. Approval of Architectural and Engineering firms necessary to meet
the schedule.
D. Deliverables:
1. Site Plans
2. Zoning application or determination letter.
3. Zoning approval, determination or Contractor's written analysis
that Metricom's use is permitted by right.
Part II: Task 3- Tracking and Reporting:
A. Services Description:
This describes the mutual tracking and reporting responsibilities of
the permitting process.
B. Contractor Responsibilities:
1. Zoning Coordination:
a. The Contractor shall track the permit application schedule
to assure planning approval deadlines are met.
--------------------------------------------------------------------------------
Metricom Confidential and Proprietary
WFI Exhibit I-A to Master Services Agreement dated 09/21/99
Metricom Initials: /s/ DWM 9 of 20 WFI Initials: /s/ MT
------- ------
--------------------------------------------------------------------------------
* CONFIDENTIAL TREATMENT REQUESTED(ED)
b. In addition, the Contractor shall manage any outside
lobbyists and/or attorneys, approved in advance by Metricom
in its sole discretion, necessary to assist in obtaining
zoning approvals.
2. Zoning Package and File Close-out:
a. The Contractor shall prepare a Zoning Package (format to be
provided by Metricom) which includes, either:
1. Convincing written evidence that Metricom may install
its WAP by right, or
2. A document evidencing the formal approval of the
appropriate jurisdiction(s) (whether through an
administrative approval process or otherwise) with
zoning conditions acceptable to Metricom, copies of
all correspondence, photos, photo simulations,
applications, conditions, staff reports, plans,
drawings, contacts, agendas and other pertinent
information, a comprehensive negotiator's report, and
any other items as detailed on Metricom's Zoning File
Documentation Checklist.
3. In addition, the Contractor will complete the
Metricom WAP Zoning File Documentation Checklist for
hand-off to Metricom's LGRPA.
3. Tracking and Reporting
a. The Contractor shall submit timely reports addressing
progress in a format provided or approved by Metricom and
attend any necessary meetings with Metricom or its
designated representative(s) no less than weekly.
b. The Contractor will keep Metricom informed of the
scheduling of all-public meetings and/or hearings.
C. Metricom Responsibilities:
1. Provide dedicated LGRPA representative in each market to attend
weekly meetings.
2. Provide local decision making authority for all zoning decisions.
3. Provide zoning package and file close-out format.
D. Deliverables:
1. Weekly report
2. The Contractor will keep Metricom informed of the scheduling of
all-public meetings and/or hearings.
3. Zoning Package and File Close-out
Part III: Construction Management:
Services Description:
Part III describes the construction management tasks and mutual
responsibilities in determining the construction feasibility of WAP
sites and all of interaction between disciplines needed to construct
the site.
Warranty:
In accordance with Section 6.1 of the Agreement, the Contractor
Warranty Period for this Part III will be [***] Days from the date of
entitlement for payment for site construction
--------------------------------------------------------------------------------
Metricom Confidential and Proprietary
WFI Exhibit I-A to Master Services Agreement dated 09/21/99
Metricom Initials: /s/ DWM 10 of 20 WFI Initials: /s/ MT
------- ------
--------------------------------------------------------------------------------
* CONFIDENTIAL TREATMENT REQUESTED(ED)
completed, WAP installed and all accepted by Metricom Representative,
as defined in Exhibit III of the Agreement.
Part III: Task 1 - Preliminary Investigation:
A. Services Description:
Task one describes the mutual responsibilities in visiting sites and
determining the construction feasibility.
B. Contractor Responsibilities:
1. Contractor shall determine the construction feasibility and layout
of each WAP site; manage all of the design and engineering
services required to produce the zoning and construction drawings;
obtain any and all required building permits and related approvals
of the plans prior to commencement of construction of the site;
manage the bidding, contracting, materials delivery, construction,
and placement of electrical service; and obtain final approval and
acceptance of each WAP site.
2. Contractor shall represent Metricom with all building departments
and related governmental officials at the municipal level and with
all contractors and utilities, except interconnect, required for
the construction and installation of the site.
3. The Contractor shall review each of the potential WAP site
candidates to determine its construction feasibility and to assist
the site acquisition representative in preparing lease exhibits
showing the optimum layout for the equipment and antennas.
4. The Contractor shall visit the local building departments and
interpret the codes to determine the process, requirements,
application forms, and drawing requirements for building permits
and other related permits required to construct each WAP site.
5. The Contractor shall discuss same as appropriate with the building
department officials.
6. The Contractor shall determine any fast track permit possibilities
and the cost and requirements of same.
7. From the preliminary investigation, the Contractor shall create a
construction feasibility report and shall assist the site
acquisition representative ensuring that the requirements of the
construction feasibility report are included in the Lease
Agreement for the WAP candidates.
8. Zoning Support - Contractor shall support the zoning process if it
is necessary for construction management personnel to appear at
any meetings or hearings to assist Metricom in obtaining the
required zoning approvals for any WAP site.
C. Metricom Responsibilities:
1. Contract A & E firms that are licensed in each GSA
2. Provide Standard Construction Equipment Specifications
3. Provide Metricom standard format for feasibility reports.
4. Provide construction approval process
D. Deliverables:
1. Construction Feasibility report utilizing the WAP Site Survey Form
Part III: Task 2- Management of Architectural & Engineering Services:
--------------------------------------------------------------------------------
Metricom Confidential and Proprietary
WFI Exhibit I-A to Master Services Agreement dated 09/21/99
Metricom Initials: /s/ DWM 11 of 20 WFI Initials: /s/ MT
------- ------
--------------------------------------------------------------------------------
* CONFIDENTIAL TREATMENT REQUESTED(ED)
A. Services Description:
Task two describes the mutual responsibilities needed to engage and
manage A&E firms needed to permit and construct the sites.
B. Contractor responsibilities:
1. The Contractor shall qualify architectural & engineering services
in each of it markets and obtain Metricom's approval of the firms
and the business terms for such services.
2. The Contractor shall request such services as required to complete
the zoning and construction drawings for each WAP site, utilizing
the forms and processes as directed by Metricom.
3. Contractor shall schedule the work of the architects and engineers
4. Contractor shall manage their progress and review the drawings and
other submittals to make sure that they meet Metricom's technical
and quality standards.
5. Contractor shall obtain from the architects and engineers the
number and type of drawings and other submittals required for
Metricom to obtain the zoning approvals and building permits
required to construct each WAP site.
C. Metricom Responsibilities:
1. Provide Metricom's technical and quality standards.
2. Define the business terms for A & E services
3. Metricom shall prepare the construction contract documents for
execution by the architects, engineers and Metricom.
4. All such contracts shall be entered into directly between the
architects and engineers and Metricom.
D. Deliverables:
1. Zoning Drawings
2. Construction Drawings
--------------------------------------------------------------------------------
Metricom Confidential and Proprietary
WFI Exhibit I-A to Master Services Agreement dated 09/21/99
Metricom Initials: /s/ DWM 12 of 20 WFI Initials: /s/ MT
------- ------
--------------------------------------------------------------------------------
Part III: Task 3- Building Permit Management:
A. Services Description:
Task three describes the mutual responsibilities and tasks associated
with obtaining building permits for the WAP sites.
B. Contractor Responsibilities:
1. Order construction contractor to prepare and submit the building
permit application (if required) to the appropriate jurisdictions,
including all required ancillary documents, drawings, and forms
required by the jurisdiction.
2. Contractor shall advise Metricom of the application fee and other
permit fees required to obtain the permits, which shall be paid by
Metricom.
3. Contractor shall manage the plan check process with the building
permit officials and obtain the building permit and other
ancillary permits required for construction of each WAP site.
4. Contractor shall attempt to expedite each permit process to the
fullest extent possible. To the extent such expediting requires
any additional cost or fees, Contractor shall obtain Metricom's
prior approval before authorizing any such expenditures.
5. Contractor shall ensure that the site Construction Company has all
the necessary building permit documentation and is aware of all-
specific conditions and requirements imposed by the jurisdiction.
C. Metricom Responsibilities:
1. Notice to Proceed with Construction
2. Approved Construction Drawings
3. Building Permit Approval
4. Pay permit application fees
D. Deliverables:
1. Building Permit Applications.
2. Building Permits.
Part III: Task 4- Materials Coordination:
A. Services Description:
This section describes the responsibilities of each company to deliver
site construction materials to each site.
B. Contractor Responsibilities:
1. Contractor shall submit to Metricom on a timely fashion all
requests for owner supplied materials, utilizing the forms and
processes designated by Metricom.
--------------------------------------------------------------------------------
Metricom Confidential and Proprietary
WFI Exhibit I-A to Master Services Agreement dated 09/21/99
Metricom Initials: /s/ DWM 13 of 20 WFI Initials: /s/ MT
------- ------
--------------------------------------------------------------------------------
2. Contractor shall make such request in a timely fashion to allow the
ordering and delivery to a warehouse of such materials by Metricom as
required for the construction of each WAP site.
3. Contractor shall order the delivery and acceptance of such materials
from the warehouse to the construction company unless Metricom directs
that the materials be delivered to some other location.
4. Contractor shall report to Metricom all material deficiencies and
defects of which it becomes aware.
C. Metricom Responsibilities:
1. Metricom will order all owner supplied WAP materials and manage the
delivery of the materials to a warehouse for storage and distribution
to WAP sites
2. Metricom will provide contractor with a list of materials to be
supplied by owner, (Metricom) bulk site vendor and the construction
contractor.
3. Metricom shall manage the process of replacing material deficiencies
and defects of which it becomes aware.
D. Deliverables:
1. Materials Delivery Schedule
Part III: Task 5- Construction Contracting:
A. Services Description:
Contractor shall manage the process of identifying, selecting, and bidding
jobs for the construction of each site.
B. Contractor Responsibilities:
1. Manage construction schedule
2. Contractor shall prepare the bid package documents for submission to
contractors for the construction of each WAP site.
3. The Contractor shall obtain bids from [***] qualified contractors for
the construction of each site, unless Metricom agrees to a different
bid process or less contractors.
4. The Contractor shall prepare an analysis of the bids and submit it to
Metricom with its recommendation for the contractor to be selected.
C. Metricom Responsibilities:
1. Metricom shall prepare the construction contract documents for
execution by the Construction Company and Metricom.
2. All such contracts shall be entered into directly between the
Construction Company and Metricom.
D. Deliverables:
1. List of qualified contractors with contact names, and recommendations.
2. Construction bid responses
--------------------------------------------------------------------------------
Metricom Confidential and Proprietary
WFI Exhibit I-A to Master Services Agreement dated 09/21/99
Metricom Initials: /s/ DWM 14 of 20 WFI Initials: /s/ MT
------- ------
--------------------------------------------------------------------------------
* CONFIDENTIAL TREATMENT REQUEST(ED)
3. Construction schedule report
4. Construction bid package analysis
Part III: Task 6- Electric Utilities Coordination
A. Services Description:
This task describes the mutual responsibilities and tasks needed to order
and verify installation of electric utilities to each WAP site.
B. Contractor Responsibilities:
1. Contractor shall coordinate with the applicable electric utilities to
plan and order such utilities for each WAP site.
2. It is anticipated that electric service shall be supplied by the
landlord of the WAP site. At WAP sites where Metricom will be required
to meter or sub-meter separately, the Contractor shall advise Metricom
of this and that direct service must be obtained from the applicable
electric utility.
3. The Contractor shall submit such orders to the electric utility in a
timely fashion to provide for installation of service in connection
with the construction of the WAP site.
4. Contractor shall inspect each site for proper electrical installation.
C. Metricom Responsibilities:
1. Provide signature authority for utility agreement
D. Deliverables:
1. Order Confirmation
2. Utility delivery schedule
Part III: Task 7- Management of Civil Construction
Services Description:
Task seven describes mutual responsibilities and the tasks associated with
site civil construction. These services are included but not limited to:
A. Contractor Responsibilities:
1. File Permits
2. Scheduling of the construction of the sites and coordination with the
landlord;
3. Inspection of the work to ensure that it meets Metricom's technical
and quality standards;
4. Requiring the contractor to complete the work in accordance with all
applicable safety procedures, regulations and laws;
5. Administering the construction contract,
6. Approving request for payment, and submitting same to Metricom;
7. Report on the completing of the civil construction in accordance with
the schedule.
--------------------------------------------------------------------------------
Metricom Confidential and Proprietary
WFI Exhibit I-A to Master Services Agreement dated 09/21/99
Metricom Initials: /s/ DWM 15 of 20 WFI Initials: /s/ MT
------- ------
--------------------------------------------------------------------------------
* CONFIDENTIAL TREATMENT REQUEST(ED)
8. Using Metricom provided "Standard Construction Process for Wired
Access Point" document, the Contractor shall prepare a punch list for
the civil construction work and manage the correction of all punch
list items by the Construction Company.
9. Using Metricom provided "Standard Construction Process for Wired
Access Point" document, the Contractor shall ensure that the
Construction Company obtains all required inspections and obtains
final sign off from the applicable building department.
10. Contractor shall obtain from the construction company and its subs
waivers of mechanic lien and lien releases in connection with
contractor's submission of its request for final payment.
C. Metricom Responsibilities:
1. Provide site inspection checklist/punch list
2. Payment mechanism to support construction contracting.
3. Provide construction agreement contract
4. Approve progress payments.
5. Insuring the completion of the civil construction in accordance with
the schedule.
6. The costs of permits will be borne by Metricom
D. Deliverables:
1. Completed site inspection checklist/punchlist
Part III: Task 8- Tracking and Reporting:
A. Services Description:
This task describes the mutual responsibilities and tasks needed to manage
the construction schedule, Construction Management Package, and File
Closeout.
B. Contractor Responsibilities:
1. Construction Schedule - Contractor shall perform the management
services according to the Construction Forecast submitted by
Contractor.
2. The Contractor shall prepare a construction management package (format
to be provided by Metricom) which includes approved documentation
evidencing the completion of all required construction and equipment
installation work and the final approval and inspection by the
building department and Metricom.
3. Contractor shall deliver to Metricom completed file including such
documentation, copies of all correspondence, draft documents, photos,
applications, permits, plans, drawings, maps, and lien releases.
4. In addition, the Contractor shall complete and submit the latest
version of Metricom's construction management file documentation
checklist to Metricom's property manager.
C. Metricom Responsibilities:
1. Metricom to provide equipment production forecast and delivery
interval.
--------------------------------------------------------------------------------
Metricom Confidential and Proprietary
WFI Exhibit I-A to Master Services Agreement dated 09/21/99
Metricom Initials: /s/ DWM 16 of 20 WFI Initials: /s/ MT
------- ------
--------------------------------------------------------------------------------
* CONFIDENTIAL TREATMENT REQUEST(ED)
D. Deliverables:
1. Releases, payment documentation, and other pertinent information or
items as detailed in Metricom's construction management file
documentation checklist (to be supplied by Metricom).
2. In addition, the Contractor will complete and submit the latest
version of Metricom's construction management file documentation
checklist to Metricom's property manager.
3. Weekly production schedule report
Part IV: WAP Cabinet and Electronics Installation
A. Services Description:
Using the WAP Cabinet Specifications provided below, this section describes
the mutual responsibilities and tasks needed to install the WAP cabinets in
each site.
Warranty:
In accordance with Section 6.1 of the Agreement, the Contractor Warranty
Period for this Part IV will be [***] Days from the date of entitlement for
payment for site construction completed, WAP installed and all accepted by
Metricom Representative, as defined in Exhibit III of the Agreement.
The WAP Cabinet Specifications are outlined as follows:
--------------------------------------------------------------------------------
WCS Cabinet
. WCS Outdoor Sites: [***].
. WCS Indoor Sites: [***].
. Metricom anticipates utilizing the [***], as dictated by capacity
requirements.
. WCS indoor cabinet dimensions are approximately: [***].[***].
. WCS outdoor cabinet dimensions are approximately: [***].
[***]
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
ISM Cabinet
. ISM Indoor : [***]. Cabinet dimensions: [***].[***].
. ISM outdoor : [***]. Cabinet dimensions: [***].[***].
--------------------------------------------------------------------------------
B. Contractor Responsibilities
1. Contractor shall perform the installation and reasonable Installation
testing, in accordance with Metricom procedures, of the WAP equipment
at each site.
2. Contractor shall schedule with Metricom to accept the site after the
installation of the electronic equipment and completion of the testing
and optimization procedures.
--------------------------------------------------------------------------------
Metricom Confidential and Proprietary
WFI Exhibit I-A to Master Services Agreement dated 09/21/99
Metricom Initials: /s/ DWM 17 of 20 WFI Initials: /s/ MT
------- ------
--------------------------------------------------------------------------------
* CONFIDENTIAL TREATMENT REQUEST(ED)
3. Contractor's completion of [***] shall be deemed the "construction
management deliverable" for purposes of Contractor's entitlement to
its construction management paypoint.
4. Responsibility for Schedule.
5. Manage and coordinate the delivery of the WAP cabinet and electronics
to the physical WAP site location and the movement from the site
location to the location where the WAP Cabinet is to be installed.
6. Field Supervision of installation services
7. Secure cabinets to floor/pad or other area or structure, as
constructed and prepared by the general construction contractor.
8. Install batteries
9. Install 4 High Power Amps (8 Amps if 8 antenna configuration used) -
WCS only.
10. Connect (wire up) the AC power (4 power cords for WCS and 2 for ISM).
11. (8 power cords if 8 antenna configuration used)
12. Install power supply (conversion) modules (4 for ISM).
13. (4 for WCS 4 antenna configuration)
14. ( 8 for WCS 8 antenna configuration)
15. Connect T-1 or DS-3 lines and 1 POTS line (to be supplied by
Metricom).
16. Connect coax (WCS) or Ethernet jumpers (ISM, which consists of
connecting 16 jumpers from the entrance protection panel to the
network switch).
17. Connect the equipment grounding system
18. Reasonable Installation testing in accordance with Metricom
procedures.
C. Metricom Responsibilities:
1. Provide documentation for Methods and Procedures for WAP equipment
installation.
2. Installation materials specifications.
3. Warehousing and delivery of all WAP electronics to the market and each
site.
4. Warehousing and delivery of all cabling kit materials to the market
and each site.
5. Warehousing and delivery of Power equipment materials to market and
each site.
6. Qualify and Select Installation subcontractors in each market.
7. Work Order documentation and procedures.
8. Quality and Safety procedures.
9. Provide DC power connection
10. T-1 or similar facilities installation to site.
11. Furnish cables and specialized test equipment for each site.
12. Furnish list of tools and test equipment required for installation
teams.
13. Furnish earthquake bracing materials as required.
14. Optimize system and test connection (including alarm functionality)
back to Network Operations Center (NOC).
15. Site Cutover management and place system or declare system ready to be
placed into service.
D. Deliverables:
1. Installation Acceptance punch list.
--------------------------------------------------------------------------------
Metricom Confidential and Proprietary
WFI Exhibit I-A to Master Services Agreement dated 09/21/99
Metricom Initials: /s/ DWM 18 of 20 WFI Initials: /s/ MT
------- ------
--------------------------------------------------------------------------------
* CONFIDENTIAL TREATMENT REQUEST(ED)
Part V- GSA MATRIX
--------------------------------------------------------------------------------------------------------------------------------
GSA Work Site Zoning Construction WAP # ISM # WCS Total
Completion Acq. Services Management Installation WAPs WAPs WAPs
Date Services Services Services
--------------------------------------------------------------------------------------------------------------------------------
Phase 1 GSAs [***]
--------------------------------------------------------------------------------------------------------------------------------
[***] X X X X [***] [***] [***]
--------------------------------------------------------------------------------------------------------------------------------
[***] X X X X [***] [***] [***]
--------------------------------------------------------------------------------------------------------------------------------
[***] X X X X [***] [***] [***]
--------------------------------------------------------------------------------------------------------------------------------
[***] X X X X [***] [***] [***]
--------------------------------------------------------------------------------------------------------------------------------
[***] X X X X [***] [***] [***]
--------------------------------------------------------------------------------------------------------------------------------
[***] X X X X [***] [***] [***]
--------------------------------------------------------------------------------------------------------------------------------
[***] X X X X [***] [***] [***]
--------------------------------------------------------------------------------------------------------------------------------
[***] X X X X [***] [***] [***]
--------------------------------------------------------------------------------------------------------------------------------
Subtotal [***] [***] [***]
---------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
Phase 2 GSAs [***]
--------------------------------------------------------------------------------------------------------------------------------
[***] X X X X [***] [***] [***]
--------------------------------------------------------------------------------------------------------------------------------
Subtotal [***] [***] [***]
---------------------------------------------
Grand Total [***] [***] [***]
--------------------------------------------------------------------------------------------------------------------------------
The numbers provided are Metricom's best estimate of the quantity of WAP sites,
ROW jurisdictions, and Utilities in each location, but they are not definitive.
Metricom reserves the right to revise these numbers, if and as necessary, in its
sole discretion.
--------------------------------------------------------------------------------
Metricom Confidential and Proprietary
WFI Exhibit I-A to Master Services Agreement dated 09/21/99
19 of 20
--------------------------------------------------------------------------------
* CONFIDENTIAL TREATMENT REQUEST(ED)
This Statement of Work is an attachment to the Master Services Agreement between
Metricom, Inc. and Wireless Facilities Inc. dated September 21, 1999. This
Statement of Work may not be modified except in writing by both Parties.
Accepted by:
Metricom, Inc. Wireless Facilities, Inc.
/s/ Xxxx X. Xxxxxxxx /s/ Xxxxxx X. Xxxxxx
-------------------- --------------------
By: Xxxx Xxxxxxxx By: Xxxxxx X. Xxxxxx
Title: General Counsel Title: President
Date: 09/29/99 Date: 09/29/99
--------------------------------------------------------------------------------
Metricom Confidential and Proprietary
WFI Exhibit I-A to Master Services Agreement dated 09/21/99
20 OF 20
--------------------------------------------------------------------------------
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Project Schedule For Site Development And EXHIBIT II-A: Statement Of Work RFP#AB-003
Construction/ [***]
-----------------------------------------------------------------------------------------------------------------------------------
xxxxx 0/xx/ Xxxxxxx 0/xx/ Xxxxxxx 0/xx/ Xxxxxxx 0/xx/ Xxxxxxx
XX Task Duration Start Finish Aug Sep Oct Nov Dec Jan Feb Mar Apr May Jun Jul Aug Sep
Name
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* CONFIDENTIAL TREATMENT REQUEST(ED)
EXHIBIT III-A
to
MASTER SERVICES AGREEMENT
Between Metricom, Inc. and Wireless Facilities, Inc.
Dated September 21, 1999
SCHEDULE OF VALUES RFP #AB-003
------------------------------
PART I-PRICE SCHEDULE
Note: Please prepare one firm fixed price cost proposal for all GSAs listed in
Exhibit I-A
-----------------------------------------------------------------------------------------------
Task Task Description $ COST/per WAP $ TOTAL Cost
-----------------------------------------------------------------------------------------------
1. Site Acquisition $[***] $[***]
-----------------------------------------------------------------------------------------------
2. Zoning Approval $[***] $[***]
-----------------------------------------------------------------------------------------------
3. Construction Management $[***] $[***]
-----------------------------------------------------------------------------------------------
4. WAP Installation/Testing/Stand- $[***] $[***]
alone Commissioning
-----------------------------------------------------------------------------------------------
Total Firm Fixed Price $[***] $[***]
-----------------------------------------------------------------------------------------------
PART II -MILESTONE PAYMENT SCHEDULE (Paid per WAP)
Note: All payments are less amounts paid under letters of intent until these
amounts are fully recovered.
-------------------------------------------------------------------------------------------------------------
Activity Payment percentage Metricom Verification Metricom Approval
Based on total price per Authority Authority
WAP by type of
WAP/(note 1)/
-------------------------------------------------------------------------------------------------------------
Search ring issued to the [***]% Local ROW Director Xxx Xxxxxxx
contractor
-------------------------------------------------------------------------------------------------------------
Lease signed [***]% Local ROW Director Xxx Xxxxxxx
-------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Metricom Confidential and Proprietary
WFI Exhibit III-A to Master Services Agreement dated 09/21/99
Metricom Initials: /s/ DWM 1 of 5 WFI Initials: /s/ MT
---------- ----------
--------------------------------------------------------------------------------
* CONFIDENTIAL TREATMENT REQUEST(ED)
-------------------------------------------------------------------------------------------------------------
Zoning approved [***]% Local ROW Director Xxx Xxxxxxx
-------------------------------------------------------------------------------------------------------------
Site construction completed, [***]% Regional Operations & Xxxx Xxxxxxxx
WAP installed and all Construction Director
accepted by Metricom Rep.
-------------------------------------------------------------------------------------------------------------
Early Completion Incentive [***]% of the weekly Regional Operations & Xxxx Xxxxxxxx
bonus for all WAP/(see Construction Directors
Part 2B Note 4)/
-------------------------------------------------------------------------------------------------------------
PART III -INCENTIVE BONUS PAYMENT SCHEDULE (Paid per GSA)
--------------------------------------------------------------------------------------------------------------------
Maximum Maximum Maximum Maximum
Incentive Bonus Incentive Bonus Incentive Bonus Incentive Bonus
GSA Week 4 Week 3 Week 2 Week 1
--------------------------------------------------------------------------------------------------------------------
Phase 1 $[***]
--------------------------------------------------------------------------------------------------------------------
[***] $[***] $[***] $[***] $[***]
--------------------------------------------------------------------------------------------------------------------
[***] $[***] $[***] $[***] $[***]
--------------------------------------------------------------------------------------------------------------------
[***] $[***] $[***] $[***] $[***]
--------------------------------------------------------------------------------------------------------------------
[***] $[***] $[***] $[***] $[***]
--------------------------------------------------------------------------------------------------------------------
[***] $[***] $[***] $[***] $[***]
--------------------------------------------------------------------------------------------------------------------
[***] $[***] $[***] $[***] $[***]
--------------------------------------------------------------------------------------------------------------------
[***] $[***] $[***] $[***] $[***]
--------------------------------------------------------------------------------------------------------------------
[***] $[***] $[***] $[***] $[***]
--------------------------------------------------------------------------------------------------------------------
TOTAL Phase 1 = $[***] $[***] $[***] $[***]
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
Phase 2 $[***]
--------------------------------------------------------------------------------------------------------------------
[***] $[***] $[***] $[***] $[***]
--------------------------------------------------------------------------------------------------------------------
TOTAL Phase 2 = $[***] $[***] $[***] $[***]
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
GRAND TOTALs $[***] $[***] $[***] $[***]
--------------------------------------------------------------------------------------------------------------------
Notes:
1. Early completion is defined as [***].
2. Additionally, early completion is calculated [***].
3. Compensation for early completion is capped at a maximum total of [***].
4. The early completion incentive allows for a maximum per GSA and per
Phase payment amount per above.
--------------------------------------------------------------------------------
Metricom Confidential and Proprietary
WFI Exhibit III-A to Master Services Agreement dated 09/21/99
Metricom Initials: /s/ DWM 2 of 5 WFI Initials: /s/ MT
---------- ----------
--------------------------------------------------------------------------------
* CONFIDENTIAL TREATMENT REQUEST(ED)
PART IV- PROFESSIONAL SERVICES RATE SHEET
The hourly rates set forth below shall apply to all Services performed by WFI
that are in addition to those described in the Statement of Work. Metricom
shall compensate WFI on an hourly basis in accordance with the rates set forth
in the table below. WFI may invoice Metricom monthly for all hourly-billed
Services rendered the previous period.
Terms and Conditions:
1. The monthly rates include $[***] living allowance per person, which covers
[***].
2. The hourly rate does not include any expenses.
---------------------------------------------------------------------------------------------------
Wireless Facilities, Inc.
1999 Hourly Services Rates
---------------------------------------------------------------------------------------------------
Service Type Employment Category Hourly Rate Monthly Rate
---------------------------------------------------------------------------------------------------
Program Management 1 Project Manager $[***] $[***]
2 Project Coordinator $[***] $[***]
3 Administrative Assistant $[***] $[***]
RF Engineering 4 Principal Engineer $[***] $[***]
5 Senior Engineer $[***] $[***]
6 Design Engineer $[***] $[***]
7 Engineer $[***] $[***]
8 Associate Engineer $[***] $[***]
9 Technician $[***] $[***]
Network Engineering 10 Principal Engineer $[***] $[***]
11 Senior Engineer $[***] $[***]
12 Design Engineer $[***] $[***]
13 Engineer $[***] $[***]
14 Associate Engineer $[***] $[***]
15 Technician $[***] $[***]
Site Acquisition 16 Leasing Manager $[***] $[***]
17 Zoning Manager $[***] $[***]
18 Site Acquisition Specialist $[***] $[***]
19 Zoning Specialist $[***] $[***]
20 Paralegal $[***] $[***]
Construction Management 21 CM Construction Manager $[***] $[***]
22 CM Operations Manager $[***] $[***]
23 CM Construction Engineer $[***] $[***]
24 CM Project Coordinator $[***] $[***]
25 CM Utility Coordinator $[***] $[***]
26 CM Field Supervisor $[***] $[***]
Installation & Maintenance 27 Cell-site Engineer $[***] $[***]
28 Switch Engineer $[***] $[***]
29 Engineer Supervisor $[***] $[***]
30 Sr. Installer $[***] $[***]
31 Installer $[***] $[***]
Documentation 32 Document Controls $[***] $[***]
--------------------------------------------------------------------------------
Metricom Confidential and Proprietary
WFI Exhibit III-A to Master Services Agreement dated 09/21/99
Metricom Initials: /s/ DWM 3 of 5 WFI Initials: /s/ MT
--------- ----------
--------------------------------------------------------------------------------
* CONFIDENTIAL TREATMENT REQUEST(ED)
Supervisor
33 Document Controls $[***] $[***]
Logistics 34 Logistics Manager $[***] $[***]
GIS 35 GIS Manager $[***] $[***]
36 GIS Specialist $[***] $[***]
Business Consulting 37 Sr. Partner $[***] $[***]
38 Partner $[***] $[***]
39 Director $[***] $[***]
40 Business Consultant $[***] $[***]
Advanced Technology 41 Principal Staff Engineer $[***] $[***]
42 Sr. Staff Engineer $[***] $[***]
43 Staff Engineer $[***] $[***]
---------------------------------------------------------------------------------------------------
Please identify what the rates include:
PART V- SCHEDULE OF ITEMS NOT COVERED BY CONTRACTOR'S PRICES
The following table summarizes which expenses are included in WFI's fixed
pricing and which are considered pass-through expenses. WFI may invoice Metricom
bi-weekly for reimbursable pass-through expenses.
---------------------------------------------------------------------------------------------------------------
WFI Metricom Provided or
Included Reimbursed to WFI as
Pass-Through expenses
---------------------------------------------------------------------------------------------------------------
Expense Summary:
---------------------------------------------------------------------------------------------------------------
Architect and Engineering Services [***] [***]
Capital lease costs (if necessary) [***] [***]
Cellular Phones/Pagers [***] [***]
Cellular/Paging Service (project related) [***] [***]
Crane rental for drive testing [***] [***]
Construction Contractor for site construction [***] [***]
Easement Acquisition Costs (if necessary) [***] [***]
Environmental Site Assessment [***] [***]
Expert Testimony (if necessary) [***] [***]
Land-use attorney (if necessary) [***] [***]
Lease option payments [***] [***]
License & Permit Fees [***] [***]
Field Expenses (maps, deeds, film developing, etc.) [***] [***]
Formal Site Survey [***] [***]
Frequency Coordination Study (preliminary and final) [***] [***]
GIS/Mapping (as necessary) [***] [***]
Mechanical and Electrical Drawings [***] [***]
Vehicle Expenses (project related) [***] [***]
Personal Computers & Related Software [***] [***]
Office Supplies [***] [***]
CW Drive Test Equipment [***] [***]
---------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Metricom Confidential and Proprietary
WFI Exhibit III-A to Master Services Agreement dated 09/21/99
Metricom Initials: /s/ DWM 4 of 5 WFI Initials: /s/ MT
---------- -----------
--------------------------------------------------------------------------------
* CONFIDENTIAL TREATMENT REQUEST(ED)
---------------------------------------------------------------------------------------------------------------
Propagation Tools (software), terrain data bases [***] [***]
Propagation Tools (hardware - computer and plotter) [***] [***]
Overnight Mail (project related) [***] [***]
Photo Simulations (as necessary) [***] [***]
Soil Tests (geotechnical testing) [***] [***]
Structural Analysis [***] [***]
Title (property ownership verification) Report Cost [***] [***]
Tower Stress and Foundation Analysis [***] [***]
Travel and Living Expenses [***] [***]
Zoning/Filing/Permitting Fees [***] [***]
EXPENSES INCLUDED IN OFFICE SPACE (see Note (1)
Telephone/FAX Service (local/long distance) (1) [***] [***]
Office Rent, Furniture & Equipment (1) [***] [***]
Utilities (1) [***] [***]
---------------------------------------------------------------------------------------------------------------
Note(1): Office Space will be compensated at a rate of $[***] per square foot
per month, said rate will be subject to negotiation by Metricom and WFI based on
demonstrated and substantial increased actual cost in a specific market.
PART VI- SCHEDULE OF ITEMS NOT COVERED BY CONTRACTOR'S PRICES
List below all items not covered by the quoted prices, per this document, and
you expect to require in order to complete the requirements as stated herein.
-----------------------------------------------------------------------------------------------------
Est.
Unit Number
Item Description Price of Units Extended Price
-----------------------------------------------------------------------------------------------------
Miscellaneous Installation Materials:
-----------------------------------------------------------------------------------------------------
Tie Wraps
-----------------------------------------------------------------------------------------------------
Cable Ladder
-----------------------------------------------------------------------------------------------------
Cables of any type [***]
-----------------------------------------------------------------------------------------------------
Specialized Test Equipment (Laptops are included)
-----------------------------------------------------------------------------------------------------
Specialized Installation Construction, such as Crane
-----------------------------------------------------------------------------------------------------
Lifts, building or door modifications [***]
-----------------------------------------------------------------------------------------------------
Crane Rental for Drive Testing [***]
-----------------------------------------------------------------------------------------------------
No permit fees of any type
-----------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Metricom Confidential and Proprietary
WFI Exhibit III-A to Master Services Agreement dated 09/21/99
Metricom Initials: /s/ DWM 5 of 5 WFI Initials: /s/ MT
---------- -----------
--------------------------------------------------------------------------------
* CONFIDENTIAL TREATMENT REQUEST(ED)
