SERVICES AGREEMENT
THIS SERVICES AGREEMENT (this "Agreement"),dated as of the lst day of
June, 1998, is made by and between TRITEL COMMUNICATIONS, INC., a Delaware
corporation ("Tritel"), and GALAXY PERSONAL COMMUNICATIONS SERVICES, INC., a
Delaware corporation ("Galaxy"), which is a wholly-owned subsidiary of WORLD
ACCESS, INC., a Delaware corporation.
In consideration of the mutual covenants contained herein and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereby agree as follows:
SECTION 1. THE SERVICES
1.1 SERVICES.
Galaxy will perform the services described on Exhibit A (the
"Services") for Tritel (or subsidiaries or entities under common control with
Tritel, as directed by Tritel) regarding the project described therein (the
"Project") in accordance with the terms and conditions of this Agreement. Galaxy
will perform the Services in a professional, workmanlike manner, will exercise
reasonable skill, care and diligence in the performance of the Services and will
carry out its responsibilities in accordance with industry accepted good
professional engineering practices and in compliance with all standards and
rules reasonably established by Tritel from time to time; provided, however,
that any timetables agreed to by Galaxy shall be subject to appropriate
adjustment in the event Tritel materially changes its established standards and
rules. Unless otherwise agreed by Tritel in writing, Galaxy will provide all
personnel, equipment and supplies necessary or appropriate to perform the
Services.
1.2 EXAMINATION OF THE SERVICES.
Galaxy has examined the applicable ordinances, rules and regulations,
and has examined the markets where the Services will be provided and satisfied
itself as to all conditions to be encountered in the performance of the
Services.
1.3 TIME IS OF THE ESSENCE.
Upon execution of this Agreement the parties shall promptly negotiate
and establish a general overall progress schedule for the performance of the
Services in all markets subject to this Agreement and completion of the Project,
which schedule shall be supplemented (prior to commencing Services in any
market) with more detailed and mutually established market by market progress
schedules (the general and more detailed progress schedules may be hereafter
referred to collectively as the "Progress Schedule") which shall include a
description of milestones marking the completion of certain successive phases of
the Services (the "Milestones"). The Progress Schedule, when executed by Tritel
and Galaxy, shall be deemed an addendum to this Agreement and become an integral
part of this Agreement. The Progress Schedule may be amended by mutual agreement
of Tritel and Galaxy in writing.
In the performance of Galaxy's obligations under this Agreement, time
is of the essence. Galaxy agrees to see to the timely performance of the
Services in accordance with the Progress Schedule and will not delay (beyond
deadlines established in the Progress Schedule) or interfere with other portions
of work on the Project. Galaxy recognizes that Tritel will incur severe economic
loss if the Project is not timely completed, and that Galaxy will be responsible
to compensate Tritel for such loss in accordance with Section 1.9 if Galaxy does
not comply with the Progress Schedule.
1.4 COMMENCEMENT AND PROGRESS.
Upon Tritel and Galaxy's mutual execution of the Progress Schedule,
Galaxy will commence providing Services within a market specified by Tritel
within three (3) weeks after written notice from Tritel to Galaxy, and shall
provide the Services diligently and in accordance with the Progress Schedule.
1.5 PRIORITY OF SERVICES.
Within the parameters of the Progress Schedule, Tritel shall have the
right to decide the time, order and priority in which the various portions of
the Services shall be performed and all other matters relevant to the timely and
orderly conduct of Galaxy's Services.
1.6 COORDINATION.
Galaxy shall cooperate with Tritel and all other contractors involved
in the Project in the provision of the Services. Tritel shall cooperate with
Galaxy in connection with its provision of the Services, and shall instruct its
contractors and agents involved in the Project to do likewise.
1.7 AUTHORIZED REPRESENTATIVE; PERSONNEL.
Galaxy shall designate one or more persons who shall be Galaxy's
authorized representative(s) on-site and off-site. Tritel shall have the right
to approve any personnel assigned by Galaxy to perform any Services, which
approval shall not be unreasonably withheld or delayed.
1.8 ASSIGNMENT AND SUBCONTRACTING.
Galaxy will not assign the work under this Agreement, or subcontract
any portion of it, without the written consent of Tritel. Galaxy will not make
any assignment of payments to be earned by Galaxy under this Agreement without
the prior written approval of Tritel.
1.9 CONSEQUENCES FOR DELAY.
Except as noted below, in the event of a delay of Galaxy referred to in
Section 1.3, there shall be deducted from the Compensation payable to Galaxy the
following amounts: (a) a charge equal to [CONFIDENTIAL TREATMENT REQUESTED] per
day per cell site for each day of delay in the Progress Schedule (or, if Tritel
incurs extraordinary expense to maintain its schedule in spite of Galaxy's
delay, an amount equal to such expense) materially attributable to Galaxy,
subject to a maximum delay charge of [CONFIDENTIAL TREATMENT REQUESTED] per cell
site; or (b) a charge
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equal to [CONFIDENTIAL TREATMENT REQUESTED] per day per each cell site within a
system or cluster of cell sites each as will be mutually defined in the Progress
Schedule (which system or cluster cannot be placed in commercial service due to
one or more cell sites within such system or cluster not being placed in
commercial service) for each day of delay in the Progress Schedule (or if Tritel
incurs extraordinary expense to maintain its schedule in spite of Galaxy's
delay, an amount equal to such expense), subject to a maximum delay charge of
[CONFIDENTIAL TREATMENT REQUESTED] per cell site for each cell site within such
system or cluster.
Galaxy will be excused for any delay caused by acts of God, war
(including civil war), civil unrest, acts of government, fire, floods,
explosions, inclement weather, epidemics, quarantine restrictions,
interplanetary catastrophes, delays solely caused by Tritel or its vendors or
other contractors, or other events beyond the control of Galaxy. Galaxy will be
entitled to extensions of time for such delay only upon written notice to Tritel
within ten (10) days after commencement of the delay.
The foregoing sums represent the amount of liquidated damages which the
parties have agreed upon as compensation to Tritel for any delay in placing
Tritel's systems in commercial service in accordance with the Progress Schedule
as a result of Galaxy's delay or interference. The parties acknowledge that such
sums represent a fair and equitable amount of compensation for delay in view of
the impossibility of ascertaining actual damages. The foregoing liquidated
damages clause shall, however, be in addition to and not in substitution for any
other rights or remedies which Tritel may have under this Agreement or otherwise
against Galaxy by reason of its failure to complete the Services with the time
limits referred to above.
If due to any act or omission of Galaxy mutually agreed Acceptance
Criteria (defined below) are not met and the commercial launch of a system is
delayed, in addition to the delay liquidated damages set forth above, Galaxy
shall correct to Tritel's reasonable satisfaction, at Galaxy's sole cost, any
deficiency in the applicable design criteria, including, reasonable costs
associated with additional planning and testing, acquiring and constructing
additional cell sites erroneously omitted from (or required as a result of any
flaw in) Galaxy's original RF design and the cost of additional base stations
and other equipment and supplies not contemplated in Galaxy's original RF
design. The provisions of this paragraph shall not apply to deficiencies caused
by Tritel's deviation from the original design criteria.
SECTION 2. COMPENSATION
2.1 COMPENSATION.
Tritel will pay Galaxy for Services rendered in accordance with Exhibit
B (the "Compensation"). Unless expressly excluded pursuant to the terms of this
Agreement, all costs and expenses related to the provision of the Services are
included in the Compensation. However, any state and local sales or use taxes
arising from Tritel's payment of the Compensation are not included and, if
applicable, shall be payable by Tritel.
2.2 PAYMENT TERMS.
Galaxy will submit invoices to Tritel in accordance with the Milestone
schedule set forth in Exhibit X. Xxxxxx will remit all properly payable amounts
within thirty (30) days of Tritel
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receipt of any such invoice unless Tritel elects the financing option set forth
below. Tritel may elect to finance the payment of any invoice for a period of up
to nine months. If Tritel so elects, interest will begin to accrue on all
charges set forth in any deferred invoice at a floating per annum rate equal to
the prime rate of interest published in The Wall Street Journal plus one percent
beginning on the thirty-first day following Tritel's receipt of any such
invoice. Each invoice will describe, in reasonable detail and with respect to
the relevant invoice period (a) a description of the Services provided, and (b)
any work product created. The Compensation shall not be altered except as
specifically provided for in this Agreement.
2.3 INVOICE REPRESENTATION.
All invoices must be accompanied by a representation and warranty of
Galaxy that all laborers, subcontractors, suppliers and others who might claim
lien rights on the Project have been or will be timely paid in full.
2.4 PAYMENT NOT ACCEPTANCE.
Payment to Galaxy alone does not constitute or imply acceptance by
Tritel of any portion of Galaxy's Services.
2.5 GALAXY PAYMENT FAILURE.
If it appears to Tritel that the labor, material and other bills
incurred in the performance of Galaxy's Services (which if unpaid may give rise
to lien rights or claims on the Project) are not being currently paid, Tritel
may take such steps as it deems necessary to insure that the money paid to
Galaxy will be utilized to pay such bills.
2.6 BACK CHARGES AND WITHHOLDS.
Tritel may withhold payments from Galaxy in amounts that are sufficient
to protect Tritel in the event of any of the following:
(a) Galaxy's improper or delayed works, defective work or damage to the
work, which is not corrected by it;
(b) Any claims Tritel may have against Galaxy arising out of other
projects;
(c) Filing of any claims, demands, suits, attachments and/or liens
against Galaxy;
(d) Reasonable evidence brought to Tritel's attention that any claims,
demands, suits, attachments and/or liens are to be filed against Galaxy which
could potentially affect the Project;
(e) Reasonable evidence brought to Tritel's attention of prospective
insolvency of Galaxy; or
(f) Any bona fide claim or lien against Tritel or the premises upon
which the Services were performed which arises out of Galaxy's default in its
performance of this Agreement.
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2.7 FINAL PAYMENT.
The final payment will be due when Galaxy's Services have been
completed and accepted by Tritel, which acceptance shall not be unreasonably
withheld. For purposes of this Section 2.7, final payment shall be deemed to
have been made upon Tritel's election to finance the charges subject to the
final payment, effective upon Tritel's provision of notice of such election to
Galaxy. The making and acceptance of final payment constitutes a waiver of any
claims by Galaxy against Tritel for compensation for extra work or for
compensation of any kind claimed by Galaxy because of the activities of Tritel
in connection with the Project. Prior to final payment Galaxy shall submit to
Tritel:
(a) Galaxy's affidavit that all payrolls, bills for materials and
equipment, and other indebtedness connected with Galaxy's Services for which
Tritel or its property might in any way be liable, have been paid, or otherwise
satisfied;
(b) Satisfaction of all required acceptance criteria which shall be
mutually established by Tritel and Galaxy within 90 days of execution of this
Agreement in accordance with the parameters and procedures set forth in the
General Milestone and Acceptance Criteria Schedule attached as Exhibit C (such
acceptance criteria as shall be established may be referred to as the
"Acceptance Criteria"); and
(c) Other data as reasonably required by Tritel, such as receipts,
releases, and waivers of liens.
Final payment shall constitute a waiver of all claims by Galaxy for additional
compensation relating to Galaxy's Services, but shall in no way relieve Galaxy
of liability for obligations assumed under this Agreement or for faulty or
defective work appearing within sixty (60) days from the later of (i) final
payment; or (ii) commercial in-service use of the applicable system.
2.8 SUSPENSION OF SERVICES.
During the term of this Agreement, Tritel may elect to suspend Services
in progress in a specific market due to any of the following conditions:
(i) FCC or state regulatory actions which affect a specific Tritel
service area;
(ii) Moratoriums or similar actions imposed by state or local
authorities which would materially affect Tritel's ability to
complete network deployment within such area; or
(iii) Mutual agreement by Galaxy and Tritel.
If Services were suspended as a result of any of the above conditions, Galaxy
would receive demobilization compensation during the suspension and
remobilization compensation if Galaxy's personnel are remobilized.
Demobilization compensation will equal [CONFIDENTIAL TREATMENT REQUESTED] of the
hourly rates of personnel demobilized (assuming a 9-hour workday and 5-day
workweek during any period of demobilization) plus a demobilization fee of
[CONFIDENTIAL TREATMENT REQUESTED] per person demobilized. Upon remobilization,
Galaxy will be paid a fee
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of [CONFIDENTIAL TREATMENT REQUESTED] per Galaxy employee remobilized. Tritel
would not assign work in progress, suspended under this provision, to other
contractors or internal personnel for resumption of work without the mutual
consent of Tritel and Galaxy. The Progress Schedule for any market suspended
shall be tolled during any period of suspension. No suspension of services under
this provision will occur prior to completion of the design phase and issuance
of search rings.
SECTION 3. TERM.
The term of this Agreement will commence on the date hereof and, unless
otherwise earlier terminated pursuant to Section 11 or extended upon mutual
agreement of the parties, will end upon the earlier of: (i) Galaxy's completion
and Tritel's acceptance of the Services (as determined by the Acceptance
Criteria); or (ii) fifteen (15) months from the date of Galaxy's commencement of
Services in the last market of Tritel in the Project covered by this Agreement.
SECTION 4. INDEPENDENT CONTRACTOR.
Galaxy will perform the Services as an independent contractor of
Tritel, and this Agreement will not be construed to create a partnership, joint
venture or employment relationship between Galaxy and Tritel. Galaxy will not
represent itself to be an employee or agent of Tritel or enter into any
agreement on Tritel's behalf or in Tritel's name, unless Galaxy is specifically
authorized in writing by Tritel to do so.
SECTION 5. COMPLIANCE WITH LAWS.
Galaxy will at its own cost (a) comply with all federal, state and
local laws, ordinances, regulations and orders with respect to its performance
of the Services (collectively, the "laws"), (b) file all reports relating to the
Services (including, without limitation, tax returns), (c) pay all filing fees
and federal, state and local taxes applicable to Galaxy's business as the same
shall become due, and (d) pay all amounts required under local, state and
federal workers' compensation acts, disability benefit acts, unemployment
insurance acts and other employee benefit acts when due. Galaxy will provide
Tritel with such documents and other supporting materials as Tritel may
reasonably request to evidence Galaxy's continuing compliance with this Section
5. Galaxy is liable to Tritel for all fines and penalties attributable to any
acts of commission or omission by Galaxy, its employees and agents resulting
from the failure to comply with laws.
SECTION 6. INSURANCE.
6.1 COVERAGE REQUIREMENTS.
Prior to providing any Services, Galaxy will procure and maintain
throughout the term of this Agreement insurance policies (including, without
limitation, automobile insurance, commercial liability insurance, professional
liability insurance and statutory workers' compensation insurance) that are
sufficient to protect Galaxy's business against all applicable risks and, upon
Tritel's request, furnish Tritel with an endorsement from the insurance carriers
showing Tritel as an additional insured under Galaxy's insurance. Galaxy will
provide Tritel
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with certificates of insurance and other supporting materials as Tritel may
reasonably request to evidence Galaxy's continuing compliance with the preceding
sentence.
6.2 CANCELLATION.
Galaxy's insurance policies shall contain a provision that coverage
afforded under the policies will not be canceled, changed in a manner to reduce
coverage from the levels currently in effect or not renewed (unless replaced
with equivalent coverage with an alternate carrier) until at least thirty days'
prior written notice has been given to Tritel. A statement to this effect will
be included with Galaxy's insurance certificates. Certificates of insurance
acceptable to Tritel shall be filed with Tritel prior to the commencement of
Galaxy's Services.
6.3 WAIVER OF SUBROGATION.
Tritel and Galaxy waive all rights against each other and against
separate contractors, and all other subcontractors for damages caused by fire or
other perils to the extent covered by Builder's Risk or any other property
insurance purchased for the Project, except such rights as they may have to the
proceeds of such insurance.
6.4 RISK OF LOSS.
Galaxy will be liable for all loss or damage, other than ordinary wear
and tear, to Tritel's property in Galaxy's possession or control. In the event
of any such loss or damage, Galaxy will pay Tritel the full current replacement
cost of such equipment or property within thirty (30) days after its loss or
damage.
6.5 NO WORKERS' COMPENSATION LIMITATION ON INDEMNITY.
In any and all claims against Tritel by any employee of Galaxy or
anyone directly or indirectly employed by Galaxy or anyone for whose acts Galaxy
may be liable, the indemnification obligations under Section 9 shall not be
limited in any way by any limitation on the amount or type of damages,
compensation or benefits payable by or for Galaxy under Workers' Compensation
laws, disability benefit laws or other employee benefit laws.
SECTION 7. OWNERSHIP AND USE OF PROPRIETARY MATERIALS
7.1 PROPRIETARY MATERIALS.
As used in this Agreement, "Proprietary Materials" means all products,
devices, computer programs, techniques, know-how, algorithms, procedures,
discoveries or inventions, whether patentable or copyrightable and whether
reduced to practice, and all materials, texts, drawings, specifications, source
code, data and other recorded information, in preliminary or final form and on
any media whatsoever, that (a) is within the scope of the Project or (b) reduced
to practice, developed, discovered, invented or made by Galaxy during the term
of this Agreement, whether solely or jointly with others, and for the purposes
of performing the Services.
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7.2 OWNERSHIP.
Tritel will be the exclusive owner of all Proprietary Materials arising
from Galaxy's performance of this Agreement. To the extent permitted under the
U.S. Copyright Act (17 USC (Section) 101 et seq., and any successor statute
thereto), the Proprietary Materials will constitute "works made for hire," and
the ownership of such Proprietary Materials will vest in Tritel at the time they
are created. To the extent the Proprietary Materials are not "works made for
hire" under applicable copyright laws, Galaxy hereby assigns and transfers to
Tritel all right, title and interest that Galaxy may now or hereafter have in
the Proprietary Materials, subject to the limitations set forth in Section 7.4.
Galaxy will promptly disclose to Tritel all Proprietary Materials.
7.3 FURTHER ACTS.
Galaxy will take such action (including, but not limited to, the
execution, acknowledgement, delivery and assistance in preparation of documents
or the giving of testimony) as may be requested by Tritel to evidence, transfer,
vest or confirm Tritel's right, title and interest in the Proprietary Materials.
7.4 LIMITATION.
Notwithstanding any other provision of this Agreement to the contrary,
this Section 7 will not obligate Galaxy to assign or offer to assign to Tritel
any of Galaxy's rights in an invention for which no equipment, supplies,
facilities or trade secret information of Tritel was used and which was
developed entirely on Galaxy's own time, unless the invention relates directly
to the Project.
7.5 USE.
Except as required for Galaxy's performance of the Services or as
authorized in writing by Tritel, Galaxy will not use, disclose, publish or
distribute any Proprietary Materials or remove any Proprietary Materials from
Tritel's premises. Galaxy will hold all Proprietary Materials in trust for
Tritel and will deliver them to Tritel upon request and in any event upon the
expiration or termination of this Agreement.
7.6 NON-INFRINGEMENT WARRANTY.
Galaxy represents and warrants that any Proprietary Materials
originating from Galaxy, and the exercise by Tritel of its rights hereunder with
respect to the Proprietary Materials, will not infringe upon, violate or
misappropriate any patent, copyright, trade secret, trademark, contract or other
right or interest of any third party.
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7.7 OTHER COMPANIES.
During the course of executing the amended services, Galaxy employees
may use software and documentation created by other RF services companies. Each
Galaxy employee who uses these software products must agree in writing to
protect any confidential information they acquire through training on or use of
these software products.
7.8 REMEDIES.
Galaxy agrees that damages may be inadequate to compensate for the
unique losses to be suffered in the event of a breach of the provisions set
forth in Sections 7.1 through 7.7, and that Tritel will be entitled, in addition
to any other remedy it may have under this Agreement or at law, to seek and
obtain injunctive and other equitable relief, including specific performance of
the terms of this Agreement without the necessity of posting bond.
SECTION 8. NO CONFLICTING OBLIGATIONS.
8.1 OTHER AGREEMENTS.
Galaxy's execution, delivery and performance of this Agreement will not
violate any other employment, nondisclosure, confidentiality, consulting or
other agreement to which Galaxy is a party or by which it may be bound.
8.2 THIRD-PARTY CONFIDENTIAL INFORMATION.
Galaxy will not use, in the performance of the Services or the creation
of any Proprietary Materials, or disclose to Tritel any confidential or
proprietary information of any other person if such use or disclosure would
violate any obligation or duty that Galaxy owes to such other person. Galaxy's
compliance with this Section 8.2 will not prohibit, restrict or impair Galaxy's
performance of the Services and it's other obligations and duties to Tritel.
SECTION 9. INDEMNIFICATION.
Galaxy shall indemnify, defend and hold Tritel (and Tritel's agents,
legal representatives, officers, directors, shareholders and employees) harmless
from all claims, damages, losses, costs, expenses (including attorneys' fees)
and liabilities, including any amounts paid in satisfaction of judgments, in
compromise or as fines and penalties, arising out of or resulting from any
claim, action, investigation or other proceeding (including any proceeding by
any of Galaxy's employees, agents or subcontractors), actual or threatened, that
is based upon (a) a default by Galaxy in the performance of its obligations
under this Agreement, (b) any representation or warranty of Galaxy being untrue
in any material respect, (c) the conduct of Galaxy's business, (d) any negligent
act or omission of Galaxy, or (e) the infringement or misappropriation of any
foreign or United States patent, copyright, trade secret or other proprietary
right by the Proprietary Materials originating from Galaxy.
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SECTION 10. NONDISCLOSURE AGREEMENT
As a condition to Tritel's obligations under this Agreement, Galaxy
agrees to abide by all the terms and conditions of that certain Non-disclosure
Agreement dated as of May 28, 1998, executed by and between Tritel and Galaxy
(the "Non-disclosure Agreement"). SECTION 11. TERMINATION.
11.1 TERMINATION FOR CAUSE.
Tritel may terminate this Agreement upon an Event of Default (defined
below), provided, however, that as to any of the matters set forth in
subparagraphs (iii) through (vii) of Section 13: (a) Tritel sends written notice
to Galaxy describing the breach in reasonable detail, (b) Galaxy does not cure
the breach within thirty (30) days following its receipt of such notice, and (c)
following the expiration of the thirty-day cure period, Tritel sends a second
written notice to Galaxy indicating Tritel's desire to terminate this Agreement.
If an Event of Default results from any of the matters set forth in
subparagraphs (i) and (ii) of Section 13, Tritel's termination of this Agreement
shall be effective upon giving notice of termination to Galaxy. Galaxy may
terminate this Agreement upon Tritel's material breach of this Agreement,
provided that (a) Galaxy sends written notice to Tritel describing the breach in
reasonable detail, (b) Tritel does not- cure the breach within thirty (30) days
following its receipt of such notice, and (c) following the expiration of the
thirty-day cure period, Galaxy sends a second written notice to Tritel
indicating Galaxy's desire to terminate this Agreement.
If Tritel terminates this Agreement for cause as described above,
Tritel, without prejudice to any other remedy it might have, may terminate this
Agreement and complete the Services by such means as Tritel deems fit. In such
case, Galaxy shall not be entitled to receive any further payment until Galaxy's
Services are completed. If the unpaid balance of the Compensation shall exceed
the aggregate of (1) the expense of Tritel of completing the Services, including
compensation for additional managerial and administrative services, and (2) the
losses and damages of Tritel, including its attorneys' fees and litigation
expense, such excess shall be paid to Galaxy. If the expense of completing
Galaxy's Services and the losses and damages of Tritel shall exceed the unpaid
balance of the Compensation, Galaxy shall pay the difference to Tritel promptly
on demand.
11.2 TERMINATION FOR CONVENIENCE.
Either Tritel or Galaxy may terminate this Agreement at any time upon
ninety (90) days' written notice to the other (a "Termination for Convenience").
Upon a Termination for Convenience by Tritel, Galaxy shall be compensated for
any Services rendered but which have not been paid ("Unpaid Services") on a time
and materials basis as set forth in Exhibit B, unless the Unpaid Services
constitute a Milestone in which case payment shall be made in accordance with
the Milestone schedule set forth in Exhibit B. Upon a Termination for
Convenience by Galaxy, Galaxy shall not be compensated for any Unpaid Services
unless the Unpaid Services constitute a Milestone in which case payment shall be
made in accordance with the Milestone schedule set forth in Exhibit B.
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11.3 SURVIVAL.
Sections 5 and 7 and Sections 9 through 24 (together with all other
provisions of this Agreement that may reasonably be interpreted or construed as
surviving termination of the Term) will survive the termination of the Term.
SECTION 12. NOTICES.
All notices given hereunder will be given (and shall be deemed to have
been given upon receipt) in writing, will refer to this Agreement and will be
personally delivered, sent by telecopy, by other electronic facsimile
transmission or by registered or certified mail (return receipt requested) to
the address set forth below the parties' signatures at the end of this
Agreement. Any party may from time to time change such address by giving the
other party notice of such change in accordance with this Section 12.
SECTION 13. EVENT OF DEFAULT.
For the purposes of this Agreement, an "Event of Default" shall be if:
(i) At any time there shall be filed by or against Galaxy in any
court a petition in bankruptcy or insolvency or for
reorganization or for the appointment of a receiver or trustee
of all or a portion of the property of Galaxy, and within
twenty (20) days from the filing date Galaxy fails to secure a
discharge; or
(ii) Galaxy makes an assignment for the benefit of creditors or
petitions for or enters into an agreement or arrangement with
its creditors; or
(iii) Galaxy materially fails to prosecute the Services in accordance
with the Acceptance Criteria, and therefore, fails to complete
the Services entirely on or before any date established in the
Progress Schedule for partial, substantial or final completion
(except for delays for which Galaxy is entitled to additional
time); or
(iv) There is a breach of any of Galaxy's representation or
warranties contained in this Agreement or required to accompany
any invoice rendered under this Agreement; or
(v) Galaxy fails to supply sufficient labor, material and/or
equipment so as to complete the Services in accordance with the
Progress Schedule, unless such delay is excused in accordance
with Section 1.9; or
(vi) Galaxy performs defective work and fails to correct promptly
and properly such defective work; or
(vii) Without limitation, Galaxy fails to perform any material
provision of this Agreement.
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SECTION 14. ASSIGNMENT
Galaxy may not assign this Agreement, in whole nor in part, without
Tritel's prior written consent. Tritel may assign its rights hereunder to (a)
any corporation or other entity resulting from any merger, consolidation or
other reorganization to which Tritel is a party, (b) any corporation,
partnership, association or other entity or person to which Tritel may transfer
all or substantially all of the assets and business of Tritel existing at such
time, or (c) any subsidiary of or entity under common control with Tritel. Upon
any such assignment by Tritel and the full and unconditional assumption by such
assignee of all of Tritel's obligations hereunder arising after such assignment,
Tritel shall be released and free from any obligation or liability under this
Agreement arising after such assignment. All the terms and provisions of this
Agreement will be binding upon and inure to the benefit of and be enforceable by
the parties hereto and their respective successors and permitted assigns.
SECTION 15. PERSONNEL
The terms and conditions of this Agreement will be binding upon
Galaxy's employees, agents, subcontractors and affiliates.
SECTION 16. WAIVERS
No delay or failure by any party hereto in exercising or enforcing any
of its rights or remedies hereunder, and no course of dealing or performance
with respect thereto, will constitute a waiver thereof. The express waiver by a
party hereto of any right or remedy in a particular instance or will not
constitute a waiver thereof in any other instance. All rights and remedies will
be cumulative and not exclusive of any other rights or remedies.
SECTION 17. AMENDMENTS
No amendment, waiver or discharge of any provision of this Agreement
will be effective unless made in writing that specifically identifies this
Agreement and the provision intended to be amended, waived or discharged and
signed by Tritel and Galaxy. Each such amendment, waiver or discharge will be
effective only in the specific instance and for the specific purpose for which
given.
SECTION 18. APPLICABLE LAW
This Agreement and each of the documents referred to herein shall be
interpreted, construed, applied and enforced in accordance with the laws of the
State of Mississippi, without regard to any rules governing conflicts of laws.
Any action to enforce arising out of, or relating in any way to, any of the
provisions of this Agreement may be brought and prosecuted only within such
court or courts located in the State of Mississippi as is provided by law; and
the parties consent to the jurisdiction of said court or courts located in the
State of Mississippi and the service of process by registered mail, return
receipt requested, or by any other manner provided by law.
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SECTION 19. SEVERABILITY
If any provision of this Agreement is held invalid, illegal or
unenforceable in any jurisdiction, for any reason, then, to the full extent
permitted by law (a) all other provisions hereof will remain in full force and
effect in such jurisdiction and will be liberally construed in order to carry
out the intent of the parties hereto as nearly as may be possible, (b) such
invalidity, illegality or unenforceability will not affect the jurisdiction
thereover will have the power to reform such provision to the extent necessary
for such provision to be enforceable under applicable law.
SECTION 20. ENTIRE AGREEMENT
This Agreement and the Non-disclosure Agreement, including the exhibits
and schedules hereto and thereto, constitute the entire agreement between the
parties with respect to their subject matters, and all prior or contemporaneous
oral or written communications, understandings or agreements between the parties
with respect to such subject matters are hereby superseded in their entireties.
SECTION 21. DISPUTES
21.1 AGREEMENT TO ARBITRATE.
All claims, disputes and matters in question arising out of, or
relating to, this Agreement or any claimed breach of this Agreement, except for
claims of Galaxy which have been waived by its acceptance of final payment,
shall be decided by arbitration in accordance with the Construction Industry
Arbitration Rules of the American Arbitration Association then in effect unless
the parties mutually agree otherwise. This agreement to arbitrate shall be
specifically enforceable.
21.2 DEMAND FOR ARBITRATION.
Notice of demand for arbitration shall be filed in writing with the
other party to this Agreement and with American Arbitration Association. The
demand for arbitration shall be made within thirty (30) days after written
notice of the claim, dispute or other matter in question has been given, and in
no event shall it be made after the when institution of legal or equitable
proceedings based on such claim, dispute or other matter in question would be
barred by the applicable statute of limitations, whichever occurs first. The
location of the arbitration proceeding shall be Jackson, Mississippi.
21.3 AWARD.
The award rendered by the arbitrator(s) shall be final and judgment may
be entered upon it in accordance with applicable law in any court having
jurisdiction.
21.4 SAME ARBITRATORS.
At the election of Tritel, any arbitration proceeding instituted by
either party under this Agreement may be consolidated with any other arbitration
proceeding then or thereafter pending
13
between either party and any other person or entity if the respective
arbitrations involve similar questions of fact or law or arise out of any work
done or services supplied for the design or construction of the Project.
21.5 EXCEPTIONS.
This agreement to arbitrate shall not apply to any claim of
contribution or indemnity asserted by one party of this Agreement against the
other party and arising out of an action brought in a state or federal court or
in arbitration by a person who is under no obligation to arbitrate the subject
matter of such action with either of the parties to this Agreement, or who does
not consent to such arbitration.
SECTION 22. COUNTERPARTS.
This Agreement may be executed in two or more counterparts that
together shall constitute a single agreement.
SECTION 23. HEADINGS.
The headings contained in this Agreement are for ease of reference and
shall not affect the interpretation or meaning of this Agreement.
SECTION 24. PUBLICITY.
So long as this Agreement is in effect, neither Galaxy, World Access,
Inc. nor any of their affiliates, officers, directors, employees or agents shall
issue any press release or otherwise make any public statement with respect to
the existence of this Agreement or the subject matter of this Agreement without
the prior written consent of Tritel.
SECTION 25. LIMITATION OF LIABILITY.
Except for the liquidated damages and other payment undertakings of
Galaxy as set forth in Section 1.9, expenses of arbitration and awards of
attorneys fees and expenses, in no event shall Galaxy be liable under this
Agreement for: (i) special, incidental or consequential damages (including loss
of profits) regardless of legal theory advanced, whether foreseen or unforeseen;
or (ii) an amount exceeding the price of Services rendered through the date of
any termination or expiration of this Agreement.
SECTION 26. FORCE MAJEURE.
In the event a party's performance of an obligation hereunder is
rendered impossible or commercially impractical (rather than simply delayed) due
to causes beyond its control and without its fault or negligence, including, but
not limited to, acts of God, war (including civil war), civil unrest, acts of
government, fire, floods, explosions, inclement weather, epidemics, quarantine
restrictions, interplanetary catastrophes, strikes or labor unrest (of third
parties but not of such party), material shortage, or delays in transportation,
such party's performance of such obligation shall be excused.
* * *
14
The parties have executed this Agreement as of the date first set forth
above.
TRITEL COMMUNICATIONS, INC.
By: ____________________________________
Name: Xxxxx X. Xxxxxxxx, Xx.
Its: Executive Vice President
ADDRESS:
0000 Xxxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxx 00000-0000
Attn: Xxxxx X. Xxxxxxxx, Xx.
GALAXY PERSONAL COMMUNICATIONS
SERVICES, INC.
By: _____________________________________
Name: Xxxxxx X. Xxxxxx, Xx.
Its: President
ADDRESS:
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx
15
EXHIBIT A
GENERAL DESCRIPTION OF SERVICES
A.1 RF ENGINEERING SERVICES
Galaxy specializes in the design, development and implementation of advanced
wireless communications systems. The firm offers full-service engineering
consulting for system design, implementation and optimization. Listed below are
the major engineering activities and key deliverables (broken down into three
major phases) to be provided by Galaxy to Tritel regarding Tritel's proposed
TDMA IS-136 PCS system. This Agreement is contingent upon Tritel and Galaxy
reaching a consensus on design methodology and acceptance criteria within days
from the execution of this Agreement.
A.1.1 Phase I - RF Engineering Services - Initial RF Design
RF design using a basic cell planning grid which attempts to meet the technical
design objectives. This design stage includes cell counts, basic propagation
analysis, and a detailed design document. A consensus allows the RF designer to
proceed to the next design step.
Major Engineering Activities:
o Establish and Finalize Design Criteria
o Perform Detailed Demographic/Traffic Data Analysis
o Complete Propagation Model Validation
o Complete System Design and Demand Analysis
o Complete Site Verification/Survey
o Analyze Drive Test Measurements
o Complete Nominal System Design
Key Deliverable: Search Area Maps: that detail for each site:
latitude/ longitude, AMSL ground elevation, address,
coverage objectives and preliminary site design
recommendations (tower height, ERP, etc.).
Handoff: Site Acquisition
16
Phase I Interim Deliverables:
o Market Visit Report that further describes market's demographic profile but
also includes data on business expansion and development, and recent
population shifts. Potential sites for propagation model validation drive
testing are identified.
o Drive Test and Propagation Model Validation Data that provides a detailed
coverage and propagation analysis (i.e. path loss per decade, 1 mile
intercept, slope, scattergrams, etc.). This data can be used to generalize
the propagation environment for similar morphological and terrestrial areas
within the market, thereby providing Tritel with a more refined and
accurate RF prediction modeling tool.
o Detailed Terrain Analysis Report for the markets under design. This
analysis will include estimates of mean and standard deviation of the AMSL
ground elevation. identification of locations that may drastically affect
RF propagation and coverage are also identified.
o Preliminary Phase I Initial RF Design Document that includes the estimated
number of cell sites, best server plots and coverage maps for each market,
final demographic data, terrain analysis and preliminary traffic analysis,
if applicable.
17
A.1.2 Phase H - RF Engineering Services - Final RF Design and Implementation
Major Engineering Activities:
o Evaluate real world sites and collocation
possibilities
o Rank Candidate Sites
o Analyze Drive Test Measurements
o Engineering Analysis of Engineered Sites
o Provide RF engineering information required for
FCC/FAA filings
o True-up design -Validate Sites
o Evaluate microwave incumbent cases
o Develop Preliminary Frequency Coordination
o Ensure special design considerations and growth
strategies are being addressed
Key Deliverable: Approved Sites
Handoff: Site Acquisition, Site Construction
Phase II Interim Deliverables:
o Candidate Evaluation Report that describes candidate sites submitted by site
acquisition which were evaluated on a per design site basis. The report will
also provide a detailed description of why each site was approved or
disapproved for final consideration.
o Candidate Evaluation Drive Data that provides detailed coverage information
and test configuration setup.
o Modified RF Network Design pursuant to approved leased candidates and
collocation candidates to be included in the final RF Network Design. This
design will include sites that have passed zoning and are inline for
permanent placement within the system design.
o Final RF Network Design that includes coverage, complete frequency
coordination and future issues associated with the design.
18
A.1.3 Phase III - RF Engineering Services - Network Optimization
Major Engineering Activities:
o Create System Optimization Procedures
o Perform System Wide Testing and Integration
o Perform system wide interference analysis testing
o Perform Network Optimization
o Complete Frequency Coordination
o Complete Interference Testing from Non-Relocated
Market Incumbents
Key Deliverable: System Available for Commercial Service
Handoff: Operations
Phase III Interim Deliverables:
o RF Network System Optimization Guidelines and Procedures Manual that includes
descriptions of key system parameters, procedures for adjusting parameters
and processes for solving various system problems.
o RF Network System Optimization Report detailing the current system parameter
settings and the solutions which were provided to resolve system problems.
19
A.2 RF PROJECT MANAGEMENT SERVICES
Major Project Management Activities:
o Manage RF Project Schedule for all markets
assigned to Galaxy by Tritel
o Provide overall RF Project Management for all RF
consulting firms
o Ensure Uniform RF Design Standards for all
markets
o Ensure Uniform RF Design Processes for all
markets
o Perform review of nominal RF Design in all
markets
o Coordinate information flow between all RF Design
teams and Tritel Project Manager
Key Deliverable: RF Project Schedule, Project Status
Reporting
Handoff: Tritel Project Manager
20
EXHIBIT B
COMPENSATION
B.1 PRICING SUMMARY:
B.1.1 Fixed Rate Pricing
Galaxy shall perform the Services for Tritel as described in Exhibit A. Section
A.1.1 The Fixed Rate Pricing set forth below (which shall apply under this
Agreement unless Tritel elects to procure Services on an time and materials
basis as outlined in Section B. 1.3) is on a "per site" basis. The price per
site for each phase is based on a minimum of 875 "effective base stations" for
which Tritel hereby engages Galaxy. These pr ices are based on Galaxy performing
all three phases of RF Engineering Services outlined herein.
An "effective base station" shall mean either (a) Galaxy's provision of Services
equaling approximately one hundred percent (100%) of the RF engineering services
required to provide RF Design, Implementation and Optimization to construct and
place in commercial service one (1) cell site within Tritel's system, or (b)
Galaxy's provision of Services equaling less than one hundred percent (100%) of
the RF engineering services required to provide RF Design, Implementation and
Optimization to construct and place in service more than one (1) cell site but
which in the aggregate total approximately one hundred percent (100%) of
Services required to construct and place in commercial service an average cell
site within Tritel's total system.
FIXED RATE PRICING PER SITE
--------------------------------------------------------------------------------
DESCRIPTION OF SERVICE
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
PHASE I - INITIAL RF DESIGN [CONFIDENTIAL TREATMENT REQUESTED]
--------------------------------------------------------------------------------
PHASE II - IMPLEMENTATION [CONFIDENTIAL TREATMENT REQUESTED]
--------------------------------------------------------------------------------
PHASE III - OPTIMIZATION [CONFIDENTIAL TREATMENT REQUESTED]
--------------------------------------------------------------------------------
TOTAL RF ENGINEERING COST PER SITE [CONFIDENTIAL TREATMENT REQUESTED]
--------------------------------------------------------------------------------
PROJECT MANAGEMENT SERVICES [CONFIDENTIAL TREATMENT REQUESTED]
--------------------------------------------------------------------------------
21
B.1.2 Volume Purchase Commitment
Tritel engages Galaxy to provide the complete RF Design services, outlined in
Exhibit A. Section A.1, for a minimum of 875 effective base stations. At
Tritel's election, Galaxy may also be engaged under this Agreement to complete
additional effective base stations as assigned by Tritel at the same per site
price. Tritel has also engaged Galaxy to provide the overall RF Project
Management services outlined in Exhibit A, Section A.2 for a minimum of 1275
base stations.
B.1.3 Hourly Engineering Services Rates
The following rates will apply for services performed on a time and material
basis, if applicable, and are good through December of 1999.
DESCRIPTION OF RESOURCE HOURLY RATE
PRINCIPAL / VP OF ENGINEERING [CONFIDENTIAL TREATMENT REQUESTED]
DIRECTOR OF ENGINEERING [CONFIDENTIAL TREATMENT REQUESTED]
RADIO PROJECT MANAGER [CONFIDENTIAL TREATMENT REQUESTED]
SENIOR RADIO ENGINEER [CONFIDENTIAL TREATMENT REQUESTED]
RADIO ENGINEER [CONFIDENTIAL TREATMENT REQUESTED]
DESIGN ENGINEER [CONFIDENTIAL TREATMENT REQUESTED]
ASSOCIATE RADIO ENGINEER [CONFIDENTIAL TREATMENT REQUESTED]
FIELD ENGINEER [CONFIDENTIAL TREATMENT REQUESTED]
ENGINEERING AIDE [CONFIDENTIAL TREATMENT REQUESTED]
22
B.2 TEST EQUIPMENT CHARGES:
Listed below are the components whose costs are included in the Fixed Rate
Pricing of Section B. 1. 1. This equipment is necessary to perform testing for
propagation model validation, clear channel verification and candidate
evaluation.
x Xxxxxxx Transmitters (20 Watt)
x Xxxxxxx PCS 1900 Scan Receivers
o Cables and Antennas
o Drive Test Vehicles (including maintenance and insurance)
o Laptop Computer
o In addition, Galaxy can provide the equipment necessary to complete
IS-136 optimization within the Tritel BTA markets.
B.3 BOOM TRUCK RENTAL FEES:
At Tritel's request, Galaxy shall provide a boom truck platform to be utilized
in conjunction with propagation model and candidate evaluation testing. Pricing
includes operator, fuel and insurance and a 15 test sites per month minimum
would apply.
--------------------------------------------------------------------------------
40 METER BOOM TRUCK WITH NECESSARY IMPLEMENTS:
[CONFIDENTIAL TREATMENT REQUESTED] PER SITE(1)
50 METER BOOM TRUCK WITH NECESSARY IMPLEMENTS:
[CONFIDENTIAL TREATMENT REQUESTED] PER SITE(2)
--------------------------------------------------------------------------------
B.4 TRAVEL EXPENSES:
Listed below are costs included in the Fixed Rate Pricing of section B.1.1.:
o Travel Expenses and accommodations away from Atlanta, GA including
airfare.
o One rental vehicle for each Galaxy personnel deployed in the market.
o Galaxy personnel will be allotted one trip home per month.
o Galaxy per diem rates are per standard 1997 U.S. Government CONUS
rates for the market that work is being performed in.
Extraordinary travel required by Tritel outside of travel between the designated
markets and Atlanta will be billed at actual costs plus an [CONFIDENTIAL
TREATMENT REQUESTED]processing fee.
----------------
(1) Mobilization charges of $2000 per market will apply
(2) Mobilization charges of $2000 per market will apply
23
B.5 OFFICE EXPENSES:
Office space and all utility costs are not part of this proposal for all markets
outside of Atlanta, GA. Galaxy will require access to a data network, a HP755
plotter, color printer, fax machine, and laser printer. Shipping, supplies, and
copying capabilities to be provided by Tritel. Galaxy will provide the following
equipment and software required to complete the Project:
o WIZARDO(R) RF Prediction and Modeling Tool
o MAPINFO Software
o MAPINFO Databases (Census, Demographic, Traffic)
o Computers - (minimum requirements: 000 XXx, Xxxxxxx, 32MB RAM)
o Laptop computers - (minimum requirements: 000 XXx, Xxxxxxx,
16 MB RAM)
B. 7 REIMBURSABLE EXPENSES:
The following charges are not included in the fixed rate pricing and are payable
by Tritel:
1. Photocopying, printing, and other reproduction costs.
2. Topographic and city Maps, models, drawings, and any other presentation
materials.
3. FAA analysis.
4. Reasonable telephone, fax and wireless phone charges.
24
B.8 TERMS OF PAYMENT
The tern s of Galaxy's payment structure is Net 30 days upon receipt of invoice
unless Tritel elects the financing option set forth in the Agreement. Fixed Rate
Billing is based on a 15-month duration of work as to each market assigned to
Galaxy by Tritel during the term of this Agreement. Pricing beyond that time
frame will be based on Galaxy's Hourly rates set forth in Section B. 1.3.
Invoices shall be rendered according to the following milestones:
RF Engineering and Project Management Services Payment Milestones
Milestone: Fee:
---------- ----
o Project Initiation, invoiced 45 days after contract signing [CONFIDENTIAL TREATMENT REQUESTED]
o Acceptance of Nominal RF Design [CONFIDENTIAL TREATMENT REQUESTED]
o Search Area Maps Issued [CONFIDENTIAL TREATMENT REQUESTED]
o RF Acceptance of Site Candidate [CONFIDENTIAL TREATMENT REQUESTED]
o Commercial In-Service [CONFIDENTIAL TREATMENT REQUESTED]
Invoices shall initially be based on the parties' mutual good faith estimate of
the total cell sites required in the market(s) in which Services have been
commenced and which are the subject of the invoices ("Initial Invoice"). If
actual cell site counts differ from the estimated count used to calculate
Initial Invoice amounts:
I) The excess amount invoiced, if any, shall be payable by Galaxy to Tritel as
follows:
i) if the Initial Invoice terms were net 30, like terms apply;
ii) if the Initial Invoice terms were under the Financing Plan, the
excess shall be subtracted from the Initial Invoice amount
financed and payment structure will be adjusted accordingly,
with credit given for any excess interest charges accrued;
iii) at Tritel's option, the excess shall be rendered in equivalent
Services value on a time and materials basis.
II) The amount of deficiency in the invoice total, it any, shall be payable by
Tritel as follows:
i) if the Initial Invoice terms were net 30, like terms apply;
25
ii) if the Initial Invoice terms were under the Financing Plan, net
30 terms apply.
As soon as the actual number of cell sites to be constructed in such markets is
determined by Tritel invoices shall thereafter be based on the actual cell site
count rather than the estimate.
26
B.9 CONDITIONS AND CONSIDERATIONS
The following conditions and specific assumptions apply to the fixed rate
pricing under this Agreement:
o Galaxy requires 3-week mobilization from issuance of Purchase Order.
o Galaxy assumes a fifteen- (15) month deployment schedule per market based on
FAA tower height approval process. o Fixed rate pricing assumes the following:
1. Completion of all associated tasks in a fifteen (15) month period. Delays
beyond such period directly attributable to equipment vendors, zoning
entities, FAA, FCC or regulatory bodies or to Tritel's internal delays
will result in charges on a time and materials basis.
2. Propagation Model Validation testing at a maximum of 15% of the total
Project sites.
3. Evaluation of up to three (3) viable candidates submitted by site
acquisition personnel per Search Area.
4. Drive testing of up to 80% of the total sites will be performed for
candidate evaluation.
5. Drive testing for one (1) candidate per site for data analysis.
6. Use of Wizard(R) propagation software for the specified duration of this
Project is included. Use of another tool and any Unix workstations
required for the tool would be at a straight pass-through charge to
Tritel.
7. Data collection and computer workstations/laptops necessary to complete
this scope of work is included in the fixed rate pricing.
8. A nine-(9) hour workday, and twenty-two (22) work days per month.
9. Meals and lodging Per Diem costs at standard 1997 government CONUS rates
are included in the fixed rate pricing.
10. Travel and per diem expenses are included in the fixed rate pricing.
o Tritel will provide Galaxy personnel access to full office workspace outside
of Atlanta, GA.
o Tritel will provide Letters of Intent for sites to be used in Propagation
Model Validation testing.
o Microwave relocation services are not included in the fixed rate pricing but
are available upon Tritel's request.
o Frequency coordination for all testing is excluded from this scope of work.
o Crane rental charges are optional services available to Tritel.
o Technology-specific phones and test equipment required for network
optimization is not included.
o FAA filing and authorization is excluded.
o If Galaxy is required to redesign the RF Plan, following acceptance of the
nominal design by Tritel and issue of the initial search rings, additional
payments will be billed under the following conditions:
1. No property available or failure to perform by Site Acquisition Tritel
(10% of Phase 1&2 Per Site Costs for each search ring reissued for the
same design location).
2. Marketing Objectives change requiring new design (10% of Phase 1&2 Per
Site Costs for each search ring reissued).
27
3. New site or new design location required to fulfill or enhance design
objectives as defined by Tritel Project manager (100% of Phase 1 & 2 Per
Site Costs for each search ring issued).
4. Approved Site Candidate rejected for any non-RF Issue (50% of Phase 1&2
Per Site Costs for each search ring reissued).
28
EXHIBIT C
GENERAL MILESTONE AND ACCEPTANCE CRITERIA SCHEDULE
Milestone Completion and Acceptance Criteria of RF Engineering Deliverables for
Tritel Wireless Markets
The following conditions, when fulfilled, define Milestone completion and
acceptance criteria for the Services ("Acceptance"). Tritel acknowledges and
accepts that failure to adhere to the Acceptance Criteria unless otherwise
authorized in writing by Galaxy shall constitutes waiver of all Tritel's claims
against Galaxy for subsequent delays or failures in network performance.
Acceptance Criteria:
MILESTONE NO. 1 NOMINAL RF DESIGN
x. Xxxxxx will designate a single contact to provide authorized acceptance
and final approvals of all Galaxy deliverables.
ii. Tritel and Galaxy must create and mutually agree upon a market by
market design criteria prior to the initiation of design activities,
including service levels, reliability margins, coverage objectives,
subscriber counts and planned system growth.
iii. Tritel, Galaxy and Tritel's designated equipment vendor must agree on
equipment performance specifications to be utilized in the design of
Tritel's network prior to the initiation of design activities. Final
responsibility for all equipment performance issues remains with
Tritel's designated equipment vendor.
iv. Tritel and Galaxy will mutually agree on Computer-aided design tools to
be utilized during the design of Tritel's markets.
v. Galaxy will recommend at its discretion the appropriate quantity of
sites required for Propagation Model Validation (PMV) Tests in
individual markets in order to calibrate industry accepted
computer-aided simulation models utilized in the design of Tritel's
markets. Tritel is responsible for providing timely permission to
access to selected PMV sites via its designated Site Acquisition
Contractor. Tritel is responsible for providing clear frequencies for
use by Galaxy in PMV testing, errors resulting from non-clear
frequencies provided to Galaxy resulting in erroneous PMV data will be
Tritel's responsibility.
vi. Galaxy will make available to Tritel for its approval the nominal RF
design of individual markets, including link budgets, model parameters,
antenna specifications and expected coverage criteria during a formal
design review prior to issuance of Search Area Maps to Tritel's
designated Site Acquisition Contractor.
NO. 2 MILESTONE SEARCH AREA MAPS
i. Issuance of Search Area Maps
29
NO. 3 MILESTONE SITE ACCEPTANCE
i. Information for site candidates will be provided in a format mutually
agreed to by Galaxy, Tritel and its designated Site Acquisition
Contractor. Galaxy will be responsible for approval or disapproval of
proposed candidates within a mutually agreed to review interval.
ii. Tritel or its designate will provide timely access to all candidate
sites required by Galaxy for candidate testing during the site approval
process.
iii. Any design criteria exceptions will be mutually agreed upon between
Galaxy and Tritel and Tritel's equipment vendor if appropriate. Design
criteria exceptions include, but are not limited to: Antenna Radiation
Centerline Heights, Antenna Orientations, Site locations outside of
specified search area, Antenna Placement and deviation from recommended
site validation activities.
iv. Galaxy and Tritel will mutually agree upon a format for delivering
required information for FCC and FAA filings.
NO. 4 MILESTONE OPTIMIZATION
x. Xxxxxx will provide Galaxy with available cleared spectrum on a market
by market basis for use in frequency planning activities in a mutually
agreed to time interval prior to the initiation of any optimization
activities. Available spectrum must be sufficient to support a mutually
agreed upon frequency reuse plan to meet approved channel counts.
ii. Galaxy will make available to Tritel for its approval the final RF
design of individual markets, including link budgets, model parameters,
antenna specifications, expected coverage criteria, final frequency
plan and a traffic/channel plan during a formal design review prior to
initiation of frequency planning activities.
iii. Performance of antennas within specified operational parameters are the
sole responsibility of the antenna vendor.
iv. Galaxy, Tritel and Tritel's equipment vendor will mutually agree on a
format for required equipment database information.
v. Galaxy, Tritel and Tritel's equipment vendor will mutually agree to an
Optimization Test Plan developed by Galaxy.
vi. Galaxy will not initiate cluster testing activities until all sites
have completed Tritel's vendor commissioning process.
vii. Delays in optimization due to equipment failure, installation problems
or construction defects will be the responsibility of Tritel's
designated vendors.
viii. Delays in optimization due to failure to implement require engineering
parameter changes will be the responsibility of Tritel or their
designated operations agent.
ix. Galaxy requires remote access to switch databases in order to verify
engineering parameter changes.
x. Optimization Tests will be performed on baseline drives of primary
routes within the established service area, operating to the
established design criteria.
30
