HomeMy WebLinkAboutScana Communications,Inc. (3)
Augusta Richmond GA
DOCUMENT NAME: <~SC.J,~A (J){'('\'(Y\U"'c.anCDS, \()C
DOCUMENT TYPE: CJ.Cj '\ -ee,rnen+-
YEAR: C\~
BOX NUMBER: aL\
FILE NUMBER: '\ ~~~
NUMBER OF PAGES: c;lC)
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SYSTEM MANAGEMENT AGREEMENT
THIS 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 regulations 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; ,----'
1. APPOINTMENT OF MANAGER
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:
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1.1 Appointment. Licensee hereby appoints Manager to manage the System as is
more fully described herein, and Manager hereby accepts such appointment. Manager ihall
provide the technical and managerial services set forth in this Agreement on behalf ~iticensee
for the System. /
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1.2 A vailabl(~ Channel Capacity. 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 shall make available the full chan,ne1
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 application 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 nec€::ssary 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;
(f)
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);
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(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 for 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 arrangements 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 defmed 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.
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2.7 Performance Guarantees. Manager shall provide coverage to Licensee as
provided in Section 10.2 of the 800 MHZ User Agreement between SCAN A
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 Spectrum 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), provided, however, such user is a Public Safety or Industrial/Land
Transportation eligible as defined 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 accordance 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
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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 Exclusive Agent. Subject to Section 3.1, Manager shall act as Licensee's
exclusive agent with n:spect 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 equipment to mobile users who may share capacity on the System.
3.3 Customer Loading 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 constructed 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 Manager Efforts. Manager will use its commercially reasonable best efforts to
construct and to load the System.
4. FCC MATTElRS
4.1 Controll. 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 intended to or will constitute a transfer of "control" (as defined in the FCC
Rules and decisions of the FCC) of any license from Licensee to Manager or any other person.
4.2 Reports. 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 Authorizations. 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.
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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 Agreement. 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 terml of this Agreement and any Renewal Period, Manager shall receive a
annual management fee ("Fee") of $1.00. Such Fee shall be payable on the first day of the
year immediately preceding 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 that will govern the specific charges to Licensee for use of the System and
the Wide-Area Network.
.6. TERM; RENEWAL; EQUIPMENT
6.1 Term: Renewal. The term of this Agreement shall commence upon the
Execution Date and shall expire ("Temlination Date") upon the earliest to occur of (a) seven
(7) years from the Execution Date; or (b) the last day of any Renewal Period (defmed below);
or (c) the termination of the 800 MHZ User Agreement in the form attached as Exhibit C
executed simultaneously 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 form 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 Temlination Date.
6.2 License. It is understood and agreed that upon Termination of this Agreement,
Manager shall have no 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. REPRESENT ATIONS; WARRANTIES; COVENANTS
7.1 Licensee. 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
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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 (f) 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 anylicense(s) without first consulting with Manager regarding such modification.
7.2 Manag(~r. 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 undertakin~s 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 other 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 DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, DIRECT OR
INDIRECT, EXPRESS OR IMPLIED, WRITTEN OR ORAL, IN CONNECTION WITH
THE EQUIPMENT, INCLUDING 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
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FORTH HEREIN. WITHOUT LIMITING THE ABOVE, MANAGER SHALL HA VB 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 INTERESTS 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 profits derived therefrom.
10. FORCE MAJEURE
Neither party hereto 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 force majeure limitation shall not apply to claims brought by unrelated third
party(ies) against Licensee.
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11. ASSIGNABILITY
11.1 By Licensee. 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 may 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 Mal1la2er. 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 perfOImance of its duties hereunder.
12. MISCELLANlB:OUS
12~1 Survival. All of the representations, warranties and covenants of the Parties
contained in this Agreement and in any Exhibit shall survive for a period of two (2) years after
this Agreement is terminated.
12.2 No ThiJl'd Party Beneficiaries. This Agreement shall not confer any rights or
remedies upon any person other than the Parties.
12.3 Entire Agreement. 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
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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 Paity.
12.6 Headings; 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 deemed given when delivered personally or by facsimile copy (with
transmission conflrmed), or upon receipt (or on the date rejected or returned if not accepted)
after dispatch by certified or registered frrst 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
C/O Charles R. Oliver, Administrator
801 Municipal Building
Augusta" Georgia 30901
With additional copy to:
Clifford Rushton
Contract Administrator
Information Technology Dept.
530 Greene Street, Room A-WI
Augusta, Georgia 30911-3999
12.8 Governing Law. This Agreement, its validity and all rights, obligations,
liabilities and responsibilities of the Parties hereto, shall be governed and interpreted in
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accordance with the law of the State of Georgia and the rules and regulations of the FCC. All
claims, disputes, and other 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 invalidity 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 other 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 this Agreement in order to achieve the intended result while maintaining
compliance with the law.
12.11 Expenses. 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 Specific 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 the Parties agrees that the other Party shall be entitled to an injunction or
injunctions to prevent breaches of th~ 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
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taking or not taking such action of compliance with any representation, warranty, covenant or
agreement contained herein and/or in a,ny 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 Cooperation. 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.
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AUGUST A, GEORGIA
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Title: Mayor
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this docuIIl8nt approved as
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EXHffiIT A
List of Subcontractors
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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 (DC/Rectifier Systems)
Tower Mounted Apparatus - Installation and Maintenance
CIPOV Enterprises, Inc., Sumter, South Carolina
Site Development Activities
Creative Project Solutions, Inc. (CPS), Cayce, South Carolina
EXHffiIT B
Facilities Sharing Agreement
ATTACHED HERETO
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FACILITIES SHARING AGREEMENT
THIS FACILITIES SHARING AGREEMENT ("Agreement") is made and entered into
this ~ day of ~~, 199 ~ by and between Augusta, Georgia, a political subdivision
of the State of Georgia (" Lice see") and 5e4/Y;f-, 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 Richmond
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 th1e 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 mobiie, 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, Inc.. the entity that will
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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 PARTY 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 I 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 repon:s, 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 any 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 dilig~nt 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.
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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 terms and conditions of this Agreement shall remain in full force and effect
during any extensions and/or renewals hereof.
6. REPRESENTATIONS 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
NOTWITHST ANDING 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. ASSIGNABILITY
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 terms 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. E~CE~NTS
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 any 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 Agreement 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 Agreement may not be varied, altered or amended, except by another document
executed by all parties 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.
By:
Name:
Title:
WITNESS
5
EXHIBIT A
[Copy of the Licenses]
Document: C:\COLA1\KHl\0569382.WP
6
EXHIBIT C
800 MHz User Agreement
ATTACHED HERETO
Page 15 of 16
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SCnNnY
COMMUNICAnONS, INC.
440 Knox Abbott Drive' Suite 240
Cayce, South Carolina 29033
(803) 343-2383 Fax: (803) 343-2387
January 27, 1998
Mr. Gary Hewitt
. Information Technology
AugustalRichmond County
530 Green St Ste A-101
Augusta GA 30911
Dear Gary,
Today I received via UPS Next Day Express Shipment the signed User Agreement and the
signed Management Agreement for AugustalRichmond County. Indeed we share your
enthusiasm in going forward with this project and I know you have spent many many
hours of work dev,eloping this to the point where it is now. I extend to you my personal
thanks for your effc)rts in making this project a reality.
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 ofthe 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 January 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 availability 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 County has
given us. Our comrnittment is to provide you with the quality of service that you desire
for the City and the County.
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Letter, Gary Hewitt
January 27, 1998, Page Two (2)
Concurred:
SCB/stm
cc:
Kevin Hall, Esquire
Bobby Carter
George Crouch
Ginger Jakins
Jim Heard-Motorola
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I NFORMAIlillLIECHlliOGY
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Phone 821-2522
FAX 821-2530
530 ,Greene Street
Annex 101
Augusta, GA/30911
From:
Jim Wall, Attorney
Gary Hewett. Technical Manager Information Technology j I.
January 30, 1997 .
P.
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To:
Date:
AUGUSTA-RICHMOND COUNTY
ADMINISTRATOR'S OFFICE
Re:
SCANA Contract
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
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