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HomeMy WebLinkAbout1999 NS Telecommunications Towers/Site Management North Carolina/Apex Standard Management Agree,&Apibit C November 16, 1998 4 WIRELESS CONEVIUNICATIONS, CONSULTING,MARKETING and MANAGEMENT AGREEMENT THIS EXCLUSIVE WIRELESS COMMUNICATIONS CONSULTING AND MARKETING AGREEMENT ("Agreement") is entered into as of the day of 1998 by and between MetroSite Managewen4 LLC an Arkansas Limited Liability Company, its successors and assigns, having its principal place of business at 11 Corporate Hill Drive, Suite 110,Little Rock Arkansas 72205 ('MetroSite"), and CQ0Z (the"Client"). WITNESSETH : WHEREAS,the Client desires to engage MetroSite to provide consulting and marketing services to Client;and WHEREAS,MetroSite desires to enter into this Agreement subject to the terms, covenants and conditions set forth herein. NOW, THEREFORE, in consideration of the mutual promises set forth herein and other good and valuable consideration,the receipt and sufficiency of which are hereby acknowledged,the parties hereto agree as follows: 1. SERVICES 1.1 Description and Performance of Services. MetroSite shall provide the following services to the Client during the Term of this Agreement: . (a) Electronic Rjtp—bw The establishment of an electronic database winch shall include an inventory of the Client's assets that may be marketed as potential wireless communications facilities (Facilities). The Client shall provide the necessary information or allow MetroSite reasonable access to the Facilities and Client records to obtain such information. (b) Marketing MetroSite shall market Facilities for lease to wireless communications companies. (c) Negotiatrion. MetroSite shall coordinate the negotiation of leases or licenses on behalf of Client Client shall provide reasonable assistance to MetroSite in the performance of MetroSite's services under this Agreement (d) Coor ' ation. MetroSite shall provide assistance to and on behalf of the Client in coordinating the equipment installation utility requirements and means of ingress and egress of wireless communications companies. (e) Lease Administration. MetroSite shall collect on behalf of the Client and shall disburse the revenues to the Client no later than fifteen(15)days after the end of the month the Rinds are collected by MetroSite. M &—Wag Review and R ." MetroSite shall review Client's zoning and land use regulations and make recommendations that would make Client's suitable sites marketable and also make the municipal zoning policy consistent with the Client's policy to make suitable municipal sites available for wireless antenna facilities. 2. COMPENSATION In consideration of MetroSite's performance of the Services, MetroSite shall receive a portion of all revenues arising from any lease or license of Facilities. From time to time, this standard fee may be reduced according to the Fee Discount Schedule attached as Exhibit A. Said consideration shall be deducted from revenues in accordance with section l(e). Notwithstanding a termination of this Agreement by either party pursuant to section 5.2, MetroSite shall receive a portion of all revenues arising from the lease or license of Facilities by the Client to wireless communications companies for the initial term of the•lease or license and any extensions or renewals thereof which leases or licenses were entered into by the Client during the term of this Agreement or which were entered into by the Client after the termination of this Agreement whicA resulted,from North Carolina/Apex Standard Management Agreement November 16, 1998 5 the provision of extensive zoning review, electronic data base, marketing, and negotiating services by MetroSite on behalf of client. Compensation for all North Carolina clients shall be according to the Fee Schedule Addendum Number One attached 3. EXCLUSIVITY During the term of this Agreement, the Client shall not engage an independent contractor, consultant or employees to perform services the same as or similar to the Services on behalf of the Client unless MetroSite has materially breached any of the terns,covenants or conditions contained in this Agreement and MetroSite has failed to cure any such breach within sixty(64) days of the date of receipt by MetroSite of notice of an alleged breach from the Client. 4. RECORDS AND REPORTS 4.1 Books and Records. MetroSite shall maintain Client's books and records at MetroSite's offices in Little Rock, Arkansas which shall be available for inspection by the Client through its agents or representatives during normal working hours as the Client shall reasonably request with not less than.three(3)days prior written notice to MetroSite. MetroSite shall maintain such books and records for not less than three (3) years following the termination or expiration of this Agreement. 4.2 Status Reports. MetroSite shall submit to the Client periodic status reports setting,forth a summary of all revenues and associated marketing and managemea fees generated by all Facility leases or licenses entered into by Client. 5. TERM AND TERNMATION 5.1 Ted. Subject to the termination provisions set forth in Section 5.2,this Agreement shall have an initial term of five(5)years, commencing on October 9. 1998, and terminating on October 9. 2403. (Initial Term) which shall be automatically extended for three(3)separate additional five(5)year terms unless either party shall provide the other written notice of its desire not to renew this Agreement ninety(90) days in advance of the lapse of the then existing term. 5.2 Termination and Actions Thereafter. This Agreement may be terminated by either party by written notice to the other party upon a material breach of any of the provisions of this Agreement provided written notice has been provided to the other party specifying the facts giving rise to the alleged breach and there is a failure to commence and diligently proceed with efforts to cure the alleged breach within sixty(60)days of the date of receipt of said notice. 6. RELATIONSHIP OF THE PARTIES 6.1 Independent Status. The relationship of MetroSite to the Client hereunder shall be that of an independent contractor. Nothing in this Agreement is intended or shall be construed to constitute MetroSite, or any of its employees, agents or subcontractors, an employee, agent or partner of the Client,nor shall MetroSite, or any of its employees, agents or subcontractors have authority to bind the Client in any respect without Client's express written.authorization. The Client shall not be liable for any negligent or willful act or omission of MetroSite or its employees, agents or subcontractors, and MetroSite agrees to indemnify, defend and hold harmless the Client and its elected and appointed officials and employees from and against any and all losses, damages, costs and expenses (including reasonable attorneys'fees and expenses) in any manner resulting from or arising out of any negligent or willful act or omission or any breach of MetroSite's obligations under this Agreement. The Client shall hold harmless MetroSite and its directors,officers,members, agents, and employees from and against any and all losses, damages, costs and expenses (including reasonable attorney's fees and expenses) in any manner resulting from or North Carolina/Apex Standard Management Agreement 6 November 16, 1998 arising out of any negligent or willful act or omission by Client, any breach of the Client's obligations under the Agreement, or any defect or unsafe or dangerous condition existing on Premises owned by Client. 6.2 Political Subdivisions. Client represents and warrants to MetroSite that it has Rill right, power and authority to enter into this Agreement and to bind Client's affiliates, subsidiaries and political subdivisions to this Agreement 7, RESTRICTIVE COVENANTS 7.1 Confidential Information Subject to the laws of the State of North Carolina pertaining to public records or unless authorized or instructed in writing by MetroSite,the Client shall not, during or at any time after the term of this Agreement except as required in the conduct of MetroSite's business, disclose to others,or use, or permit to be disclosed to others or used, any of MetroSite's works, ideas, information, or knowledge which the Client may obtain during the course of or in connection with the services provided by MetroSite, including such works, ideas, information, or knowledge relating to systems, software, research and/or development, designs, compositions, formulae, processes, business methods, present and prospective customers of MetroSite, business dealings with such customers, prospective marketing, promotion, sales and advertising programs and strategies. Irrespective of whether or not such inventions, discoveries, works, ideas, information,knowledge or data have been identified by MetroSite as secret or confidential, unless and until, and then to the extent and only to the went that such information becomes available to the public otherwise than by the Cheat's act or omission, all inventions, discoveries,works,ideas,information,knowledge,and data described or referred to in this Section 8 are referred to herein collectively as"Confidential Information". 7.2 Essence of Agreement. The Client acknowledges(i.)that the use, misappropriation or disclosure of the Confidential Information(as defined in Section 7.1)would constitute a breach of trust and cause irreparable injury to MetroSite, (ii.)that all such Confidential Information is the property of MetroSite, and(iii.)that it is essential to the protection of the goodwill and to the maintenance of MetroSite's competitive position that the Confidential Information not be disclosed by the Client to others or used by the Client to the Client's own advantage or the advantage of others. The Client further acknowledges that the Client's agreement to the provisions of this Article 8 and the enforceability of such provisions against the Client are an essential element of this Agreement and that, absent such provisions and the enforceability thereof;MetroSite would not(i.)engage the Client,nor(ii.)permit the Client access to and use of Confidential Information. 7.3 Non solicitation. During the term of this Agreement and for 180 days thereafter, the Client shall not(i.) solicit or induce any employee of MevoSite to leave the employ of MetroSite, or(ii.) hire or attempt to hire any employee of MetroSite. 7.4 EM;Lt_able Relief. The Client acknowledges that the provisions of Article 6 and 7 of this Agreement are material to MetroSite, that MetroSite would not have entered into this Agreement if it did not include Articles 6 and 7, and that the damages sustained by MetroSite as a result of a breach of those Articles cannot be adequately remedied by damages at law. MetroSite shall be entitled to injunctive and any other equitable relief to prevent or curtail any breach of Articles 6 and 7 of this Agreement,in addition to any other remedy it may have at law. 8. INSURANCE MetroSite shall maintain,at its expense,a policy or policies of insurance for each type of coverage and with the minimum limits stated below: (a) Commercial general liability insurance and errors and omissions insurance, including broad form contractual coverage, insuring against liability arising out of or based upon any act or omission of MetroSite, its officers, directors, members, employees and agents. Such insurance shall provide coverage to a limit of not less than One Million Dollars(S 1,000,000). (b) Comprehensive automobile liability insurance covering liability arising out of or based upon the use of any owned,hired or non-owned automobile or other automobile equipment. Such insurance shall provide coverage to a limit of not less than One Million Dollars ($1,000,000).