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HomeMy WebLinkAboutScana Communications,Inc. Augusta Richmond GA DOCUMENT NAME: 5CJ\~A Com\'f'llJG\c..cr\\()t)S) \nc. DOCUMENT TYPE: ~ Y eemert\- YEAR: C\~ BOX NUMBER: 0-\ FILE NUMBER: \mlo~) NUMBER OF PAGES: ~)f5 - SYSTEM MANAGEMENT AGREEMENT TIDS AGREEMENT is made and entered into as of January 6 , 199"8 ("Execution Date"), by and between SCANA Communications, Inc. (hereinafter "Manager"), a South Carolina corporation, and Augusta, Georgia ("Licensee"). (Manager and Licensee are individually a "Party" and collectively the "Parties"). RECITALS WHEREAS, Licensee is or anticipates being licensed by the Federal Communications Commission ("FCC") for a multiple channel, trunked, land mobile radio system in the 800 MHZ frequency band ("System") located in or around Richmond County, Georgia and Manager is in the business of operating 800 MHZ systems; and WHEREAS, Licensee desires to engage the services of Manager and Manager desires to assist Licensee in the continued operation of and/or the acquisition of new equipment for, and the construction and operation of, Licensee's System and facilities, in accordance with all applicable rules and re:gulations of the FCC (collectively "FCC Rules"); and WHEREAS, Licensee and Manager are familiar with the FCC Rules applicable to Licensee's responsibilities, and it is the intention of the Parties that this Agreement not diminish Licensee's duties and/or responsibilities as an FCC licensee; and WHEREAS, Manager presently operates and manages a non-profit, cost-shared, wide area 800 MHZ trunked voice radio system throughout portions of South Carolina and Georgia (the "Wide-Area Network"), and Manager and Licensee desire to incorporate the System into the Wide-Area Network provided that the necessary regulatory approvals can be secured; and WHEREAS, Manager and Licensee will enter into an 800 MHZ User Agreement that will govern the specific charges to Licensee for use of the System and the Wide-Area Network; NOW, THEREFORE, in consideration of the foregoing and the mutual promises herein contained, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties covenant and agree as follows: 1. APPOINTME:NT OF MANAGER 1.1 Appointment. Licensee hereby appoints Manager to manage the System as is more fully described herein, and Manager hereby accepts such appointment. Manager shall provide the technical and managerial services set forth in this Agreement on behalf of Licensee for the System. Page 1 of 16 1.2 Available Channel Capacity. Provided that the necessary regulatory approvals are secured from the FCC and any other federal, state or other govermnental authority having jurisdiction over Licenst~e or the System, Licensee shall make available the full channel capacity of its System to allow Manager to accomplish the placement of mobile users on the said System on a non-profit cost-shared basis, in accordance with the terms and conditions as herein provided. 2. SERVICES 2.1 In General. Subject to the general authority of Licensee as is more fully described in the FCC Rules and in this Agreement, Manager shall be responsible for the development of the System. Manager's responsibilities shall include managing, overseeing, arranging for and directing the planning, designing, constructing, equipping and operating of the System and its business, all of the foregoing being subject to the general authority of Licensee. Manager shall also be responsible for collecting fees from any mobile users of the System. Manager shall use its best efforts consistent with sound and reasonable practice to conduct (or cause to be conducted) such business and to render (or cause to be rendered), assist with, obtain or contract for all services, as shall be necessary for the planning, design, construction, equipping and operation of the System, including without limitation, the following: (a) Arranging for, assisting with and/or overseeing the preparation of the design for the System and/or for the consultation with Licensee by Manager or by advisors with respect to the review and evaluation of the design; (b) Subject to Section 4 below, assisting Licensee with any and all radio frequency licenses or any applicalion filed or to be filed by Licensee with the FCC or any other person; (c) Arranging for, assisting with and/or overseeing the acquisition of assets or rights to use assets necessary for the planning, design, construction, development and operation of the System, including any expansion, modification or reduction thereof; (d) Arranging for, assisting with and/or overseeing the hiring and supervision of the personnel necessary to construct and operate the System; (e) Arranging for financing for the construction and operation of, and purchase of the equipment ("Equipment") for, the System; (t) System; Arranging for and/or overseeing or assisting with the construction of the (g) Subject to Section 3, arranging for and/or overseeing the development and implementation of a mobile user program to include, without limitation, service to mobile users eligible for service on the System (including user I.D. assignments); Page 2 of 16 (h) Payment of all expenses and fees incurred or payable by the System as provided in Section 2.4 hereof, to include holding Licensee harmless for any and all such expenses incurred by or on behalf of the System; (i) Arranging for the maintenance of the System according to standards consistent with FCC Rules, and tlJr the provision of necessary repairs and replacements; and (j) Providing for appropriate office record keeping, bookkeeping and internal accounting services and arranging for and/or overseeing outside accounting services; and (k) Generally, providing management services to perform all of the day-to-day operations of the System and doing or assisting with any and all other acts or executing such other agreements, documents or instruments, as are consistent with FCC Rules and, in the good faith judgment of the Manager, are necessary to carry out the development, construction and operation of this System, whether or not specifically enumerated herein. 2.2 Control,!. Manager understands that discretion, control over and responsibility for the System shall remain vested in Licensee. Licensee will supervise Manager's activities and will retain control over all aspects of the System operation as required of a Licensee under applicable FCC rules and regulations. 2.3 Consolidation. In arranging for the provision of goods and services to Licensee, including, without limitation, the services referred to in Section 2.1 hereof, Manager may make arrangemen.ts to consolidate the purchase of such goods and services with purchases for other 800 MHZ systems owned, operated or managed by Manager or its affiliates; provided that all such purchases are on the terms no less favorable than could be obtained by Manager for Licensee on an unconsolidated basis or on terms no less favorable than could be obtained by Licensee on an unconsolidated basis. 2.4 Costs. In exchange for the Fee dermed in Section 5, Licensee and Manager agree that Manager shall be responsible for all costs of equipping, constructing and operating the System. 2.5 Subcontractors. Manager may employ such subcontractors or agents as it deems necessary in the performance of its duties hereunder from the list of subcontractor's attached hereto as Exhibit A, subject, however, to Licensee's right to reject any listed subcontractor from future work by providing fifteen (15) days written notice to Manager. Any additional subcontractors shall be subject to Licensee's prior written consent; provided, however, nothing herein shall prevent the use of a subcontractor that has not been approved, in writing, in an emergency. 2.6 Enhanc:ements. The parties acknowledge that, during the term of this Agreement, additional enhancements of the System, its capabilities and equipment may become necessary, including additional equipment and software related thereto, if any. Licensee shall not unreasonably withhold its consent to the addition of such enhancements and capabilities as reasonably requested by Manager at a later date. Page 3 of 16 2.7 Performance Guarantees. Manager shall provide coverage to Licensee as provided in Section 10.2 of the 800 MHZ User Agreement between SCANA Communications, Inc. and Augusta, Georgia, attached hereto as Exhibit C and made a part hereof. User shall have the option of terminating this Agreement upon thirty (30) days written notice in the event Manager fails to meet said Performance Guarantees. 2.8 Spectrwn Availability. If at any time the availability of spectrum impedes the ability of SCANA Communications to meet the Performance Guarantees as set forth above, Licensee shall assist Manager in efforts to secure additional frequencies. Should additional frequencies not be available and Manager fails to meet the Performance Guarantees set forth above, Licensee shall have the option of terminating this Agreement upon thirty (30) days written notice. 3. WIDE-AREA NETWORK; EXCLUSIVE AGENT; COOPERATION; BEST EFFORTS 3.1 Wide-Area Network. (a) Licensee acknowledges that Manager desires to incorporate the System into the Wide-Area Network managed and operated by Manager and to install third party mobile users on the System who are eligible now (or may' become eligible in the future) to utilize the System pursuant to FCC's rules (all such mobile users shall be users of the Wide- Area Network), provid.ed, however, such user is a Public Safety or Industrial/Land Transportation eligible as defmed by the FCC's Rules. Provided that the necessary regulatory approvals are secured from the FCC and any other federal, State, county, municipal or other governmental authority having jurisdiction over Licensee or the System to allow Manager to incorporate the System into the Wide-Area Network, Licensee Agrees to allow Manager to take such actions. Licensee also agrees to enter into a non-profit, cost-sharing or facilities sharing agreement with each mobile user of the Wide area Network to allow such mobile User to use the System in ac:cordance with Section 90.179 of the FCC's Rules, 47 C.F.R. ~ 90.179 (1995) in substantially the form of the Facilities Sharing Agreement attached hereto and a part hereof as Exhibit B. Such mobile users have access to the System on a nonprofit, cost-shared basis, in accordance with a unique 800 MHZ User Agreement. (b) Provided that the necessary regulatory approvals are secured from the FCC and any other federal, state or other governmental authority having jurisdiction over Licensee or the System, Licensee, after review, will grant Manager the right (i) to combine the channels on the System with other channels, and (ii) to connect Licensee's channels into the Wide-Area Network, if Manager so chooses. To the extent necessary or appropriate to facilitate or implement. Manager's management and operation of the System, Licensee will cooperate in the execution of any other agreements as Manager from time to time may reasonably request. (c) All fees, expenses and capital expenditures of the Wide-Area Network (which may include any management fee payable to Manager and shall include fees, expenses Page 4 of 16 and capital expenditures attributable to the System) incurred by Manager and allocated to the Wide-Area Network shall be accounted for by Manager. Manager shall pro rate the fees, expenses and capital expenditures of the Wide-Area Network (including the System) on a non- profit, cost-recovery basis among the Wide-Area Network's users, including Licensee. Manager shall maintain records of the fees, expenses and capital expenditures associated with managing, operating and maintaining both the System and the Wide-Area Network so that it can ensure that mobile users bear their prorated share. It is understood and agreed, however, Licensee's only cost shall be as provided in Section 5 hereof and as set forth in the 800 MHz User Agreement attached hereto as Exhibit C. 3.2 Exclusiive Al:ent. Subject to Section 3.1, Manager shall act as Licensee's exclusive agent with respect to identifying non-Public Safety eligible third party mobile users in and around Richmond County, Georgia to share service capacity on the System. It is understood that nothing herein shall prevent Manager from selling mobile equipment or maintenance on such I~quipment to mobile users who may share capacity on the System. 3.3 Customer Loadine and System Construction. Subject to the provisions of Section 3.1(a), the Parties shall cooperate with respect to the future use of the System by other mobile users and the loading of mobile users on the System and any expansions thereof as provided for herein. Licensee understands and acknowledges that under current FCC Rules, the channels must be I:onstructed and placed in operation within one year of the date of the grant of any licenses for the System. Accordingly, Licensee shall take all reasonable steps necessary to assist Manager in achieving that end. 3.4 Mana~~er Efforts. Manager will use its commercially reasonable best efforts to construct and to load the System. 4. FCC MATTE:RS 4.1 Control. Licensee is or anticipates becoming an FCC licensee of 800 MHZ radio frequency spectrum, and shall supervise Manager's activities and will exercise licensee control thereof and over all aspects of the System's operation, and be responsible thereof as required under applicable FCC Rules. It is expressly agreed and understood that nothing in this Agreement is intc::nded to or will constitute a transfer of "control" (as defmed in the FCC Rules and decisions of the FCC) of any license from Licensee to Manager or any other person. 4.2 Reporlts. Licensee will prepare, maintain and submit, as applicable, in accordance with FCC rules and regulations, all reports, notices and/or other documentation required to operate the System. Manager shall be responsible for assisting Licensee in preparing, maintaining and submitting any such reports, notices and other documentation. 4.3 AuthoJrizations. Licensee, with Manager's assistance, shall be responsible for obtaining any licenses or other authorizations required by the FCC, and for complying with FCC Rules and with the rules and regulations of any federal, state or local regulatory agency. Licensee will provide: notice to Manager of any FCC correspondence or inquiries on matters that relate to the FCC license(s) or the System within 10 days of Licensee's receipt of same. Page 5 of 16 4.4 Performance Standards. Manager shall be responsible for assuring that all work performed and required of Manager as set forth under this Agreement shall be in substantial compliance with all applicable law and FCC Rules. 4.5 A2I"eement. In the event that the FCC determines that any provision of this Agreement, or the relationship between Manager and Licensee created hereby, violates any applicable FCC Rules, the Parties shall immediately make good faith and diligent efforts to bring this Agreement or such relationship into compliance with such FCC Rules, and any applicable FCC order relating thereto, subject to the provisions of Section 12.10. 5. MANAGEMENT FEE; 800 MHZ USER AGREEMENT During the teml of this Agreement and any Renewal Period, Manager shall receive a annual management fe~~ ("Fee") of $1.00. Such Fee shall be payable on the fIrst day of the year immediately prec~:ding the year in which such Fee will be earned. Licensee and Manager agree to enter into the 800 MHZ User Agreement attached as Exhibit C and incorporated herein by reference tha.t will govern the specifIc charges to Licensee for use of the System and the Wide-Area Network. 6. TERM; RENE,W AL; EQUIPMENT 6.1 Term: Renewal. The term of this Agreement shall commence upon the Execution Date and shall expire ("Termination Date") upon the earliest to occur of (a) seven (7) years from the Execution Date; or (b) the last day of any Renewal Period (dermed below); or (c) the termination of the 800 MHZ User Agreement in the form attached as Exhibit C executed simultaneouslly herewith. Unless Licensee notifIes Manager in writing ("Non- Renewal Notice") of its intent not to renew this Agreement, and/or the 800 MHZ User Agreement in the fortI'll attached as Exhibit C executed simultaneously herewith, at least 180 days prior to any potential Termination Date, this Agreement shall renew automatically (" Automatic Renewal"') on the same terms and conditions set forth herein (unless otherwise amended by the parties) for two (2) year periods ("Renewal Period") on (i) the Termination Date and/or (ii) the last day of each Renewal Period. If Licensee timely provides the Non- Renewal Notice, this Agreement shall terminate in accordance with this Section. Notwithstanding Automatic Renewal, if Manager desires not to continue managing the System beyond any potential Termination Date, Manager shall notify Licensee in writing no later than 180 days prior to any potential Termination Date. 6.2 License~ It is understood and agreed that upon Termination of this Agreement, Manager shall have nOl further right to the use of the Licenses utilized in the System or the inclusion of the System in the Wide-Area Network. Manager shall execute and/or fIle any document or instrument necessary to evidence such Termination. 7. REPRESENTATIONS; WARRANTIES; COVENANTS 7.1 Licensf~e. Licensee represents and warrants that (a) it is or will be the duly authorized Licensee with respect to any license(s) granted by the FCC, and is duly qualifIed Page 6 of 16 under all laws, rules and regulations to hold such license(s), (b) it is the sole owner and real property in interest in any license(s) and that no other property has an interest of any kind, (c) it has the requisite authority and/or capacity, as applicable, to perform its undertakings pursuant to this Agreement, (d) it is familiar with the applicable rules and regulations of the FCC (including those requiring that Licensee retain control of any license(s)), (e) it is aware of no impediment to the performance of its undertakings hereunder, and (t) any license(s) which it holds shall remain in full force and effect for the full term of said license(s). Licensee shall not modify any license:(s) without fIrst consulting with Manager regarding such modifIcation. 7.2 Manae1er. Manager represents that it (a) is a corporation organized and existing under the laws of the State of South Carolina and is duly authorized and in good standing under the laws of the State of Georgia, (b) has the requisite authority to perform its undertakings pursuant to this Agreement, and (c) is familiar with the applicable FCC Rules and is aware of no impediment to the performance of its undertakings hereunder. 8. INSURANCE:; LIMITATION OF LIABILITY 8.1 Insurance. Liability insurance for the System shall be obtained and maintained by Manager, at Manager's sole cost and expense, as follows: (a) Comprehensive general liability policies of insurance in standard form protecting Manager and Licensee and their agents against any liability occasioned by accident or disaster in connection with the operation of the Systems contemplated by this Agreement. The minimum limits of such liability insurance shall be $1,000,000.00 for injury or death to one or more persons or with respect to damage property; and (b) such other insurance as Manager deems necessary with respect to the operation of the System. However, the Parties expressly agree that at Manager's option, Manager may enter into a program of self insurance in lieu of obtaining the coverages described in this paragraph. A duplicate policy, if one is obtained, shall be furnished to Licensee, or such otht:r proof of coverage as License may require. 8.2 Disclaimer of Warranties. LICENSEE ACKNOWLEDGES AND AGREES THAT MANAGER IS NOT THE MANUFACTURER OF EQUIPMENT AND MANAGER HEREBY DISCLAIMlS ALL REPRESENTATIONS AND WARRANTIES, DIRECT OR INDIRECT, EXPRESS OR IMPLIED, WRITTEN OR ORAL, IN CONNECTION WITH THE EQUIPMENT, ][NCLUDING BUT NOT LIMITED TO ANY AND ALL EXPRESS AND IMPLIED WARRANTIES OF SUITABILITY, DURABILITY, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. 8.3 Limitation of Remedies/Liabilities. LICENSEE ACKNOWLEDGES AND AGREES THAT ITS SOLE AND EXCLUSIVE REMEDY IN CONNECTION WITH ANY DEFECTS IN ANY EQUIPMENT, INCLUDING MANUFACTURE OR DESIGN, SHALL BE AGAINST THE MANUFACTURER OF THE EQUIPMENT UNDER THE MANUFACTURERS' WARRANTIES AND THAT MANAGER SHALL HAVE NO LIABILITY TO LICENSEE IN ANY EVENT FOR ANY LOSS, DAMAGE, INJURY, OR EXPENSE OF ANY KIND OR NATURE RELATED DIRECTLY OR INDIRECTLY TO ANY EQUIPMENT OR SERVICE PROVIDED HEREUNDER OTHER THAN AS SET Page 7 of 16 FORTH HEREIN. WlTHOUT LIMITING THE ABOVE, MANAGER SHALL HAVE NO LIABILITY OR OBLIGATION TO LICENSEE, IN EITHER CONTRACT OR TORT, FOR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND INCURRED BY LICENSEE, SUCH AS, BUT NOT LIMITED TO, CLAIMS OR DAMAGES FOR PERSONAL INJURY, WRONGFUL DEATH, LOSS OF USE, LOSS OF ANTICIPATED PROFITS, OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES OR ECONOMIC LOSSES OF ANY KIND INCURRED BY LICENSEE DIRECTLY OR INDIRECTLY RESULTING FROM OR RELATED TO ANY EQUIPMENT OR RADIO SERVICE DESCRIBED HEREUNDER, WHETHER OR NOT CAUSED BY MANAGER'S NEGLIGENCE, TO THE FULL EXTENT SAME MAY BE DISCLAIMED BY LAW. ANY REFERENCES TO EQUIPMENT IN THIS PARAGRAPH SHALL BE DEEMED TO APPLY TO ALL EQUIPMENT USED BY LICENSEE, PURCHASED BY LICENSEE, OR LEASED BY LICENSEE FROM MANAGER, IF ANY, OR ANOTHER LESSOR. 9. OTHER INTE:RESTS AND CONFLICTS Manager and its affiliates may engage in or possess an interest in other business ventures of any nature or description, independently or with others, whether currently existing or hereafter created, including the acquisition, construction, management, operation and sale of 800 MHZ systems, and, Licensee shall not have any rights in or to such independent ventures or the income or profilts derived therefrom. 10. FORCE MAJEURE Neither party h.ereto shall be liable for delays in performance, or for failure to perform, due to: acts of God, acts of a public enemy, acts or failure to act on the part of any other party, acts by civil or military authority, governmental priorities, strikes or other labor disturbance; earthquakes, fires, floods, epidemics, embargoes, war, riot, delays in transportation, car shortages and loss or damage beyond the reasonable control of either party or its suppliers to obtain necessary materials, components, service of facilities, provided, however, that this forc:e majeure limitation shall not apply to claims brought by unrelated third party(ies) against Licensee. Page 8 of 16 11. ASSIGNABILITY 11.1 By Lic(~nsee. Subject to the prior written consent of Manager, which may be withheld for whatever reasons or granted conditionally, and provided it does not violate any of the other terms and conditions of this Agreement or any applicable rule and/or regulations of the FCC, Licensee m2LY assign its rights under this Agreement to a purchaser of the System, provided such purchaser expressly assumes all of the obligations of Licensee hereunder and otherwise agrees to comply with all of the terms and conditions of this Agreement. Such assignment shall be effective only upon written notice to Manager by Licensee, satisfaction of the above said conditions and provisions of this Agreement and, to the extent applicable, consent of the FCC to the transfer of any license authorizations. Any such assignment shall not relieve Licensee of its obligations hereunder until assignment and assumption are completed and all prior obligations fulfIlled. 11.2 By Mana~er. Subject to the prior written consent of Licensee, which may be withheld for whatever reason or granted conditionally, and provided it does not violate any of the other terms and conditions of this Agreement or any applicable rule and/or regulations of the FCC, Manager may assign its rights to manage the System hereunder to another party; provided such assignee has experience in the management of land mobile radio systems or other telecommunications facilities or, alternatively, is an affiliate of Manager or employs either personnel of Manager or other persons who have experience in the management of land mobile radio systems or other telecommunications facilities. Such assignment shall be effective only upon written consent by Licensee. Any such assignment shall not relieve Manager of its obligations hereunder until assignment and assumption are completed and all prior obligations fulfilled. Manager may employ such subcontractors or agents as it deems necessary in the performance of its duties hereunder. 12. MISCELLANEOUS 12.1 Survival. All of the representations, warranties and covenants of the Parties contained in this Agrc:ement and in any Exhibit shall survive for a period of two (2) years after this Agreement is tenninated. 12.2 No Third Party Beneficiaries. This Agreement shall not confer any rights or remedies upon any p<::rson other than the Parties. 12.3 Entire Aereement. This Agreement and its Exhibits constitute the entire Agreement between the parties and supersede any prior understandings, agreements, or representations by or between the Parties, written or oral, that may have related in any way to the subject matter hereof. 12.4 Succession. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. 12.5 Counterparts. This Agreement may be executed in one or more counterparts, each of which, when executed, shall be deemed an original and all of which together will Page 9 of 16 constitute one and the same instrument. This Agreement shall be binding upon the transmission by facsimile by each Party of a signed signature page thereof to the other Party. If such transmission occurs, the Parties shall each also immediately post, by overnight courier, a fully executed counterpart of the Agreement to the other Party. 12.6 Headin~~ Construction. The section headings contained in this Agreement are inserted for reference and convenience purposes only and shall not affect in any way the meaning or interpretation of this Agreement nor be deemed to constitute a part hereof. This Agreement has been fully reviewed and negotiated by the Parties and their respective counsel. Accordingly, in interpreting this Agreement, no weight shall be placed upon which Party or its counsel drafted or controlled the drafting of the provisions being interpreted. 12.7 Notices., All notices, requests, demands, communications or information which are required to be or may be given under or in connection with this Agreement shall be in writing and shall be de,emed given when delivered personally or by facsimile copy (with transmission confrrmedl), or upon receipt (or on the date rejected or returned if not accepted) after dispatch by certified or registered fIrst class mail, postage prepaid, return receipt requested, directed to the Party to whom the same is so given or made at the address or facsimile number of such Party as hereinafter set forth or such other address or facsimile number as the Parties may hereinafter designate: To Manager: SCANA Communications, Inc. Attn: Stephen C. Blackwell 440 Knox Abbott Drive, Suite 240 Cayce, SC 29003 To Licensee: Augusta" Georgia CIO Charles R. Oliver, Administrator 801 Municipal Building Augus~l, Georgia 30901 With additional copy to: Clifford. Rushton Contract Administrator Informa.tion Technology Dept. 530 Greene Street, Room A-101 Augusta, Georgia 30911-3999 12.8 GoverDlin~ Law. This Agreement, its validity and all rights, obligations, liabilities and responsibilities of the Parties hereto, shall be governed and interpreted in Page 10 of 16 accordance with the law of the State of Georgia and the rules and regulations of the FCC. All claims, disputes, and 01her matters in question between the Manager and Licensee arising out of or relating to this Agreement, or breach thereof, shall be decided in the Superior Court of Richmond County, Georgia. The Manager, in execution of this Agreement, specifically consents to venue in Richmond County, Georgia and waives any right to contest the venue in the Superior Court of Richmond County. 12.9 Amendments. No amendment of any provision of this Agreement shall be valid unless the same shall b~ an instrument in writing and signed by Manager and Licensee. 12.10 Severability. Any term or provision of this Agreement or any other agreement, document or writing given pursuant to or in connection with this Agreement that is or shall be deemed invalid or unenforceable in any situation in any jurisdiction shall be ineffective to the extent of such invalidi~y only and stricken as though never written, without in any way affecting the validity or enforceability of the remaining terms and provision in any other situation or in any othe:r jurisdiction; provided that if the remaining parts materially alter the benefits of the Agreement for either party, the Parties shall use their best efforts to promptly modify the terms of thi.s Agreement in order to achieve the intended result while maintaining compliance with the law. 12.11 Expenst~. Manager and Licensee each will bear its own costs and expenses (including legal fees and expenses) incurred in connection with this Agreement and the transactions contemplated hereby. Manager and Licensee shall each be responsible for any broker's fees incurred by them in connection with transactions contemplated hereby. As set forth in Section 8, to the extent that a Party may have any liability to a broker or any other liability, that liability should be and remains the sole liability of that Party and that party shall indemnify and hold harmless the other Party from any liability related to such broker. 12.12 Incorporation of Exhibits. The Exhibits are incorporated herein by reference and made a part hereof. All Exhibits hereto have been delivered by the Parties hereto to each other previously or simultaneously herewith. 12.13 Specifi(: Performance. Each of the Parties acknowledge and agrees that the other Party would be damaged irreparably in the event any of the provisions of this Agreement are not performed in accordance with their specific terms or otherwise are breached. Accordingly, each of 1he Parties agrees that the other Party shall be entitled to an injunction or injunctions to prevent breaches of the provisions of this Agreement and to enforce specifically this Agreement and the terms and provisions hereof in any action instituted in the Superior Court of Richmond County, in addition to any other remedy to which it may be entitled, at law or in equity . 12.14 Waivers. No action or inaction taken at any time pursuant to this Agreement, including the failure to require performance of any obligation provided for in this Agreement or any investigation by or on behalf of either Party, shall in any way affect the right to require such performance at any time thereafter or be deemed to constitute a waiver by the Party Page 11 of 16 taking or not taking suc.h action of compliance with any representation, warranty, covenant or agreement contained herein and/or in any Exhibit. The waiver by either Party hereto of any default, misrepresentation or breach of any provision of this Agreement shall not operate or be construed as a waiver of any prior or subsequent breach of the same or any other such provision or constitute ;a waiver of the responsibility or obligation itself. 12.15 Cooper~lltion. Each of the Parties hereto shall cooperate with the other and take such steps and execute such documents as may be necessary from time to time to effectuate the terms and conditions of this Agreement. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as the Execution Date. SCANA COMMUNICATIONS, INC. ~~~^~ Nam . "' ~~\J~~~l4-- ~l~\ AUGUST A, GEORGIA ltP~raJ ness Title: Mayor c,~ ThiI doCUWlIfllIppllJV.d as ~~;lf1 Page 12 of 16 EXHIBIT A List of Subcontractors Page 13 of 16 Exhibit A List of Subcontractors Site Technical - Equipment Installation. Operation. Maintenance. Consultation Motorola, Incorporated - Land Mobile Products Division South Carolina Electric & Gas, Co. (SCE&G) - Telecommunications Division RCC Consultants, Inc.,. Richmond, Virginia; Cayce, South Carolina Buford Goff and Associates, Columbia, South Carolina MIP, Inc., Piedmont, South Carolina (DClRectifier Systems) Tower Mounted Apparatus - Installation and Maintenance CIPOV Enterprises, Inc., Sumter, South Carolina Site Development Activities Creative Project Solutions, Inc. (CPS), Cayce, South Carolina EXlDBIT B Facilities ShariD!! A~eemeDt A TT ACHED HERETO Page 14 of 16 FACILITIES SHARING AGREEMENT THIS FACILITIES SHARING AGREEMENT ("Agreement") is made and entered into this ~ day of ~~~. 199 rt by and between Augusta. Georgia, a political subdivision of the State of Georgia ("Lice see") and .5e4/Yft-, a ("Sharing Party"). WHEREAS, Licensee holds or will hold an authofization or authorizations issued by the Federal Communications Commission ("FCC") for 800 MHz frequencies in the area of Riclunond County, Georgia (collectively referred to hereinafter, whether singular or plural, as the "Licenses") and operates or will operate certain 800 MHz land mobile radio facilities ("the Facilities") pursuant to those Licenses. A copy of the Licenses as issued are attached hereto and become a part hereof as Exhibit A: and WHEREAS, Sharing Party, as a part of its business and/or service, has a need for land mobile radio communications; and WHEREAS, Licensee's Facilities are a part of SCANA Communications' 800 MHz wide-area network (the "Wide-Area Network"), and Sharing Party is a mobile user on the Wide- Area Network; and WHEREAS, in furtherance of the objectives of the Wide-Area Network, Licensee desires to permit Sharing Party to share the use of the Licenses and the Facilities, in accordance with all applicable rules and regulations of the FCC (the "FCC Rules"), in particular Section 90.179, 47 C.F.R. ~ 90.179 (1995); and WHEREAS, Licensee and Sharing Party are familiar with the FCC Rules applicable to Licensee's responsibilities, and it is the intention of the parties that this Agreement not diminish Licensee's duties and/or responsibilities as an FCC Licensee; NOW THEREFORE, in consideration of the foregoing and the mutual promises herein contained, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto covenant and agree as follows: 1. SHARED USE OF FACILITIES 1.1 Licensee hereby agrees to permit the Sharing Party, at no cost or charge paid to Licensee, to operate in accordance with the parameters of the Licenses set forth in Exhibit A, and to engage in the shared use of the Facilities in order to conduct land mobile, or such other radio operations as may be in accordance with the FCC Rules. Sharing Party agrees to use the Facilities in accordance with the terms of this Agreement and all applicable rules, regulations, statutes or other applicable governing law. 1.2 Licensee and Sharing Party acknowledge that they each have or will enter into a separate, 800 MHz User Agreement with SCANA Communications. rnc.. the entity that will 1 manage, operate and maintain the Facilities and the Wide-Area Network, for payment of costs and expenses incurred in connection with the Wide-Area Network. 2. SHARING I'ARTY CONSTRUCTION Licensee agrees that Sharing Party may, at its oW,n expense, install equipment and erect structures, or use existing equipment and structures, as may be necessary to utilize the licensed frequencies identified in Exhibit A. 3. RETENTION OF CONTROL Licensee will supervise Sharing Party's activities and will retain control over all aspects of the operation of the Facilities, as required of a Licensee under the FCC Rules. Sharing Party expressly acknowledges that all shared transmitters must be subject to Licensee's control. 4. FCC MATTERS 4.1 Licensee is or will be an FCC licensee of the above-referenced frequency spectrum, and shall exercise Licensee control thereof, and be responsible as required under the FCC Rules. 4.2 Licensee will prepare, maintain and submit, as applicable, in accordance with the FCC Rules, all reports, notices and/or other documentation required to operate the Facilities. 4.3 Licensee is solely responsible for obtaining any licenses or other authorizations required by the FCC, and for complying with the FCC Rules and with the rules and regulations of any federal, state or local regulatory agency. Sharing Party will assist Licensee in obtaining any licenses or other authorization required by Licensee, and in complying with the FCC Rules and with the rules and regulations of any federal, state, or local regulatory agency. Licensee will not intentionally violate .my applicable law, rule or regulation. 4.4 Sharing Party shall be responsible for assuring that all construction performed by Sharing Party, or its agents, as set forth under this Agreement shall be in substantial compliance with all applicable laws and the rules and regulations of the FCC. 4.5 In the event that the FCC determines that any provision of this Agreement, or the relationship between Sharing Party and Licensee created hereby, violates any applicable FCC Rules, the parties shall immediately make good faith and diligent efforts to bring this Agreement or such relationship into compliance with such rules and regulations, and any applicable FCC order relating thereto. 4.6 It is expressly agreed and understood that nothing in this Agreement is intended to or will constitute a transfer of "control" of the Licenses (as defined in the rules, regulations and decisions of the FCC) from Licensee to Sharing Party or any other person. 2 5. TERM 5.1 The term of this Agreement shall be for a period of seven (7) years from the date of execution of this Agreement; provided, however, that this Agreement shall terminate upon the failure of Licensee to maintain valid FCC Licenses. 5.2 If either party, after receiving from the other party written notice of its failure to perform any obligation hereunder, does not take immediate steps after the receipt of such notice to in good faith correct any such violation, then the non-defaulting party shall have the right, after expiration of a five-day period. to terminate this Agreement by giving written notice to the defaulting party setting forth the effective date of cancellation which shall be not less than thirty (30) days after the date such termination notice is delivered to the alleged defaulting party. 5.3 The t,erms and conditions of this Agreement shall remain in full force and effect during any extensions and! or renewals hereof. 6. REPRESENT A TIONS AND WARRANTIES 6.1 Licensee represents and warrants that it is or will be the duly authorized Licensee with respect to the Licenses granted by the FCC, and is duly qualified under all laws, rules and regulations to hold such Licenses. Licensee further represents and warrants that it is the sole owner and real party in interest in the Licenses and that no other party has an interest of any kind. Licensee further represents that it has the requisite authority and/or capacity, as applicable, to perform its undertakings pursuant to this Agreement. 6.2 Each of the parties hereto represents and warrants that it shall take such steps and execute such documents as may be necessary from time to time to effectuate the terms and conditions of this Agreement. 6.3 Sharing Party represents that it is a duly authorized and in good standing under the laws of the State of and has the requisite authority to perform its undertakings pursuant to this Agreement. 6.4 Each of the parties hereto represents and warrants that it is familiar with the applicable rules and regulations of the FCC and is aware of no impediment to the performance of its undertakings hereunder. 7. LIMITATION OF LIABILITY NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT TO THE CONTRARY. Licensee SHALL NOT BE LIABLE TO SHARING PARTY FOR ANY INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING IN ANY MANNER FROM THIS AGREEMENT AND THE PERFORMANCE OR NON- 3 PERFORMANCE OF ITS OBLIGATIONS. ANY AND ALL EXPRESS AND IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PURPOSE OR USE ARE EXPRESSLY EXCLUDED AND DISCLAIMED BY LICENSEE EXCEPT TO THE EXTENT SPECIFICALLY AND EXPRESSLY PROVIDED HEREIN. 8. ASSIGNAB][LITY Provided it does not violate any of the other terms and conditions of this Agreement or any applicable rule and/or regulations of the FCC, Licensee may assign its rights under this Agreement to a purchaser of the frequencies licensed pursuant to the Licenses, provided such purchaser expressly assumes all of the obligations of Licensee hereunder and otherwise agrees to comply with all of the tenns and conditions of this Agreement. Such assignment shall be effective only upon written notice to Sharing Party by Licensee, satisfaction of the above said conditions and provisions of this Agreement and, to the extent applicable, consent of the FCC to the transfer of the Licenses. 9. ENHANCE1VlENTS The parties acknowledge that in the future, additional enhancements of the said Facilities, its capabilities and equipment may become necessary, including additional equipment and software related thereto. Licensee acknowledges that it will not unreasonably withhold its consent to the addition of such enhancements and capabilities as reasonably requested by Sharing Party at a later date. 10. GOVERNING LAW Except with respect to those matters which are subject to the jurisdiction of the Federal Communications Commission, the validity, performance and all matters relating to the effect of this Agreement and .my amendment hereto shall be governed by the internal laws of the State of Georgia without giving effect to the provisions, policies or principles thereof as to conflicts of laws. 11. WAIVER The failure of either party to insist, in anyone or more instances, upon the performance of any of the terms, covenants or conditions herein, or to exercise any right hereunder, shall not be construed as a waiver or relinquishment of the future performance of any such terms, covenant or condition, or the future exercise of such right, but the obligation of the other party with respect to such future performance, shall continue in full force and effect. 12. ENTIRE AGREEMENT; COUNTERPARTS This Agreeffil::nt and the Exhibits hereto constitute the entire understanding between the parties, and there are no warranties, representations or understandings, verbally or in writing 4 except as provided herein. This Agreement may be signed in any number of counterpart with the same effect as if the signature of each counterpart were the same instrument. 13. MISCELLANEOUS This Agreemc~nt may not be varied, altered or amended, except by another document executed by all partic~s hereto subsequent to execution o{this Agreement. In the event one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement, but the Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein is held to be invalid, illegal or unenforceable, and the result of such invalidity or unenforceability is to materially alter the result the parties intended to achieve hereunder, the parties agree to use their best efforts to promptly modify the terms of this Agreement in order to achieve the intended result while maintaining compliance with the law. This Agreement must be maintained by Licensee, or its agent, with the records for the Licenses. This Agreement shall not confer any rights or remedies upon any person other than the parties hereto. IN WITNESS WHEREOF, the parties have each caused this Agreement to be duly executed as of the day and year first above written. AUGUSTA, GEORGIA By: By: Name: Name: Title: Title: WITNESS WITNESS 5 EXHIBIT A [Copy of the Licenses] Document: C:\COLA1\KH1\0569382.WP 6 EXHIBIT C 800 MHz User A2l"eement ATTACHED HERETO Page 15 of 16 , ..' .... St:nNn~ COIIIIWlUN/CAnoNs,/NC. . 440 Knox Abbott Drive. Suite 240 Cayce. South Carolina 29033 (803) 343-2383 Fax: (803) .34.3-2387 January 27, 1998 Mr. Gary Hewitt Information Technology Augu&~chmoruICounry 530 Green St Ste A-I 0 1 Augusta GA 30911 Dear Gary, Today I received via UPS Next Day Express Shipment the signed User Agreement and the signed Management Agreement for Augusta/Richmond Counry. Indeed we share your enthusiasm in going forward with this project and I know you have spent many many hours of work developing this to the point where it is now. I extend to you my personal thanks for your effbrts in making this project a realiry. SCANA Communications will begin to coordinate the CSSI and JEMC site development work, assuming the sites are still available for use. We will also commence active coordination with your designee, Jim Heard, in order that he may coordinate the necessary frequencies at the sites in Georgia. We will keep you advised regularly of the progress on the project. As I previously mentioned it would be prudent for you to continue services that you may have: in place for several months, as the additional channels and repeaters at some of the existing sites may require additional time to put in place. Gary, I noted that the date of the contracts was indicated as January 6, 1998 in both cases, however, the contracts were not dispatched to SCANA Communications until yesterday, January 26, 1998. Per this letter it is my request that for performance purposes under these contracts we amend the execution date to read Januarv 26. 1998. If you would please obtain the Mayors'signature in concurrence with this and forward a copy of this letter back to me, I would appreciate it. Had the difference in time been only several days between receipt date and dates on the front sheet, this would not be necessary; however, since so many days are involved I feel this method of concurrence in a change would be prudent. After confirming aLvailabiliry of CSSI and JEMC and doing the next coordination with Jim Heard, I will be back in touch with you with an update status report. SCANA Communications sincerely appreciates the opportunity Augusta and Richmond Counry has given us. Our cornmittment is to provide you with the qualiry of service that you desire for the Ciry and the Counry. ~ - Letter, Gary Hewitt January 27, 1998, Page Two (2) YOUTStrWY~~ &kwell Manager Enginneering and Operations Concurred: SCB/stm cc: Kevin HaIL Esquire Bobby Carlter George Crouch Ginger Jakins Jim Heard-Motorola '!1lII cIllcumInllt~'~vad as ~2~:"J7R . fll...~ ;2..}3 Ie, & ~ ~ Phone 821-2522 FAX 821-2530 530 Greene Street Annex 101 Augusta, GA 30911 From: Gary Hewett, Technical Manager Information Technology ~/"/ ! I ./ I v , ! J p~ FES 0 3 1!lJJ ~ To: Jim Wall, Attorney Date: January 30, '1997 Re: SCANA Conlract AUGUSTA-RICHMOND COUNTY ADMINISTRATOR'S OFFICE SCANA Communications has requested that "for performance purposes under these contracts we amend the execution date to read January 26, 1998." Please approve this requested change and forward it to the Mayor's office for a signature. After he has signed the attached document have it forwarded to me and I will return it to SCANA. If you have any questions contact me at (707)821-2525. CC: Clifford Rushton, Director Information Technology ~~ a,...Q ~ td ~ ;.;. P' {1,. - ~ ~ ~~ ~ C--~~~ ~~J-~' r~~~ t8f7 J J::-